R (on the application of Weaver) v
London & Quadrant Housing Trust
This case confirmed that a housing association should be treated as a ‘public authority’
for the purposes of the Human Rights Act 1998 and was therefore open to challenge
under the Act and susceptible to judicial review proceedings.
First instance decision
The claimant, Mrs Weaver, was an assured tenant in social housing managed by
the defendant housing association. The defendant, London & Quadrant Housing
Trust, is a Registered Social Landlord (RSL) under the Housing Act 1996.
There was an increasing problem of rent arrears and the defendant decided to seek
an order of possession on the basis of unpaid rent (mandatory Ground 8 to Schedule
2 of the Housing Act 1988).
The claimant applied for judicial review of the decision, challenging the order
on the following grounds:
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In light of the standard terms and conditions of the tenancy agreement, the defendant
was in breach of a legitimate expectation in failing to pursue all reasonable alternatives
before resorting to a mandatory ground for possession. |
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The defendant’s decision to use a mandatory ground also breached the claimant’s
rights under the European Convention on Human Rights. |
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The defendant was a public authority within the meaning of the Human Rights Act
1998 and was therefore susceptible to judicial review |
The arguments developed before the Court focused on whether or not the defendant
was in fact a ‘public authority’.
Section 6(1) of the Human Rights Act 1998 makes it unlawful for a public authority
to act in a way which is incompatible with a convention right and section 6(3)(b)
provides that the term ‘public authority' includes 'any person certain of whose
functions are functions of a public nature' save that a person would not be a public
authority by virtue only of section 6(3)(b) if the nature of the act was private.
The divisional court determined that the defendant was a public authority arising
from its function of allocating and managing its housing stock.
Although the Court held that the defendant was constituted and governed by its own
rules and entered into private law contracts with tenants, it held that the nature
of the defendant’s activities and the context within which it operated made the
situation very different from that of an ordinary commercial business. The defendant
operated within the sector of social rented housing which was “permeated by state
control and influence with a view to meeting the government’s aims for affordable
housing.” In doing so, the Court said that RSLs worked side by side with, and took
the place of, local authorities. Of particular importance was the public subsidy
of the activities of the defendant. Moreover, the transfer of housing stock from
the public sector to RSLs reflected the fact that they performed the same type of
function, as did the provision of accommodation by RSLs to those with priority under
local authorities’ allocation schemes.
The Court therefore also held that the defendant was susceptible to judicial review
principles in the exercise of this public function.
However the Court found that there had been no breach of the tenant’s human rights,
nor any breach under the principles of public law in relation to relying on Ground
8 as a ground of possession. Mrs Weaver’s claim was dismissed.
Court of Appeal
Although the defendant had succeeded in defending the action, it appealed against
the decision regarding whether it was a public authority and whether it was susceptible
to judicial review on conventional public law grounds.
The appeal was dismissed by a 2:1 majority.
The arguments in the Court of Appeal centred on whether the act of terminating the
tenancy was a private act and therefore not susceptible to human rights principles.
The Court decided that the Human Rights Act 1998 did apply. In particular the Court
found that provision of social housing by the defendant was a ‘public function’
by reference to a number of factors. These included:
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Significant reliance on public finance and a substantial public subsidy; |
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In allocating social housing it had operated in very close harmony with the local
authority, assisting it to achieve the authority’s statutory duties and objectives; |
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Provision of subsidised housing could be regarded as a governmental function; and |
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The defendant had been acting in the public interest and had charitable objectives. |
None of these factors taken on their own would have been sufficient to make the
provision of housing a public function, but taken together they did so. The act
of termination was so bound up with the provision of social housing that it followed
that it did not constitute an act of a private nature and was subject to human rights
considerations.
The Court held that the protection afforded by the Human Rights Act 1998 would extend
to all tenants of the defendant who were in social housing and not just those who
were in properties acquired as a result of state grants.
London & Quadrant’s Management Board has now decided to apply to take the case
to the House of Lords. We will publish further information on how this matter develops.
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For More Information Contact:
Matthew Wolton
TPP Law Limited
53 Great Suffolk Street
London SE1 ODB
t 020 7620 0888
f 020 7620 0778
e info@tpplaw.co.uk
Email:
Matthew
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