| HUMAN RIGHTS — Public authority — Functions of public nature — Claimant assured tenant of defendant registered social landlord — Claimant owing 8 weeks’ rent — Defendant seeking possession order — Declaration sought by claimant that defendant’s policy to seek mandatory possession order rather than recover debt by other means unlawful — Whether registered social landlord exercising “functions of a public nature” — Whether registered social landlord public authority — Whether registered social landlord amenable to judicial review — Whether policy unlawful — Housing Act 1988, Sch 2, ground 8 — Housing Act 1996, s 1 — Human Rights Act 1998, s 6(3)(b) Sch 1, Pt I, art 8
R (Weaver) v London and Quadrant Housing Trust [2008] EWHC 1377 (Admin); [2008] WLR (D) 207
DC: Richards LJ and Swift J: 24 June 2008
The management and allocation of housing stock by a housing trust which was a registered social landlord under the Housing Act 1996, including decisions concerning the termination of a tenancy, was a function of a public nature, with the effect that the registered social landlord was to regarded as a public authority in that respect for the purposes of s 6(3)(b) of the Human Rights Act 1998. The registered social landlord was accordingly amenable to judicial review on conventional public law grounds in respect of its performance of that function.
The Divisional Court of the Queen’s Bench Division so held in reserved judgments when dismissing in part the application by the claimant, Susan Weaver, for judicial review of the decision of the defendant, the London and Quadrant Housing Trust, a registered social landlord under s 1 of the Housing Act 1996, of 27 March 2007, to seek an order for possession against her on ground 8 of Sch 2 to the Housing Act 1988 (at least eight weeks’ rent arrears).
The claimant, an assured tenant of the defendant, contended that the defendant was in breach of a legitimate expectation in failing to pursue all reasonable alternatives before resorting to a mandatory ground for possession and that alleged breach was also relied on in support of a contention that the decision was in breach of, inter alia, article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
RICHARDS LJ said that the grounds of challenge raised prior issues as to the amenability of the defendant to judicial review on a conventional public law basis and as to whether it was a “public authority” within s 6(3)(b) of the 1998 Act. The defendant was regulated under the 1996 Act by the Housing Corporation, an executive non-departmental public body responsible to the Secretary of State and having a range of functions designed principally to fund the development of affordable housing in England and to regulate and facilitate the proper performance of the registered social landlord sector. There were factors which pushed the case further towards the public function side of the line than in YL v Birmingham City Council (Secretary of State for Constitutional Affairs intervening) [2008] AC 95. The management and allocation of housing stock was not in itself an inherently governmental activity. Although the defendant was constituted and governed by its own rules, owned and managed housing stock and entered into private law contracts with tenants, the nature of its activities and the context within which it operated was a very different situation from an ordinary commercial business. The social rented housing sector within which the defendant operated was subject to detailed regulation and permeated by state control and influence with a view to meeting the Government’s aims for affordable housing and was one in which registered social landlords could be said to take the place of local authorities. Of particular importance was the nature and extent of public subsidy involved including the receipt of capital grants from the Housing Corporation and social housing grants under s 18 of the 1996 Act. That the defendant’s business was heavily subsidised by the state was attributable to the role it played in the implementation of Government policy. Another relevant feature was the voluntary transfer of housing stock to registered social landlords from the public sector. The duty of co-operation with local authorities under s 170 of the 1996 Act was also of significance. The defendant was for relevant purposes a public authority within s 6(3)(b) of the 1998 Act. In so far as a function of the defendant was a public function which made it a public authority for the purposes of the 1998 Act then it should be equally amenable to judicial review on conventional public law grounds in respect of its performance of that function. On the facts of the case the claimed legitimate expectation was too tenuous and general in character to be enforceable in public law and there was in any event no breach of it. In view of the other conclusions reached, the Convention issues, which arose only on the basis that the defendant was a public authority within s 6(3)(b) of the 1998 Act but was not susceptible to judicial review on conventional public law lines in relation to the decision to take possession proceedings against the claimant, and depended on establishing a breach of legitimate expectation, necessarily fell away.
SWIFT J agreed. |
