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Jean-Yves Gilg

Editor, Solicitors Journal

Function over form

Function over form


The recent ruling that decisions by housing associations can be subject to judicial review is only one step towards allowing more challenges to decisions by registered providers under the new Housing and Regeneration Act 2008, says Andrew Dymond

Registered social landlords (RSLs) that is, housing associations registered with the Housing Corporation under the Housing Act 1996, are key providers of housing. Whether tenants of RSLs can challenge the decisions of their landlords by way of judicial review has been one of the most important, recent issues in housing law. In an era when government policy has encouraged transfer of local authority housing stock to RSLs under large scale voluntary transfers (LSVTs), the question has become increasingly significant. The issue is highlighted in the context of decisions to evict tenants who do not have security of tenure. It is well-established that council tenants without security of tenure can challenge decisions to evict them on traditional administrative law grounds (Bristol DC v Clark [1975] 1 WLR 1443, CA; Cannock Chase DC v Kelly [1978] 1 WLR 1, CA). In contrast, the traditional view has been that tenants of housing associations cannot do so (Peabody Housing Association Ltd v Green [1978] 38 P&CR 644, CA).

Public body under the Human Rights Act

The key issue is whether an RSL can be said to be a 'public body', which is amenable to judicial review. With the advent of the Human Rights Act 1998 (HRA), it was inevitable that the question would be revisited, as the HRA defines a 'public authority' as including 'any person certain of whose with functions of a public nature' (s 6(3)(b)). Cases involving human rights issues potentially open up the range of bodies whose decisions may be open to challenge.

Accordingly, in Poplar HARCA v Donoghue [2001] EWCA Civ 595; [2002] QB 48, the Court of Appeal held that an RSL was a public authority for HRA purposes when it sought to evict an assured shorthold tenant. Although the decision did not assist the defendant as interference with her rights under Art.8 was held to be justified, the wider significance of the decision was the court's opinion that the approach as to whether a body is a public authority under

s 6(3) is inspired by the case law under which bodies are identified as public authorities which are amenable to judicial review. Furthermore, the court's reasoning in Donoghue was later relied on in a different context in determining whether a body was amenable to judicial review (Hampshire CC v Graham Beer (t/a Hammer Trout Farm) [2003] EWCA Civ 1056; [2004] 1 WLR 233).

Allowing challenges in Weaver

The issue was finally addressed directly in R (Weaver) v London & Quadrant Housing Trust [2008] EWHC 1377. Weaver concerned a claim by LQHT against a tenant under ground 8, Sch.2, Housing Act 1988 (mandatory rent arrears). The argument was that LQHT was in breach of a legitimate expectation that it would not rely on ground 8 before pursuing all reasonable alternatives. The claim failed because the legitimate expectation was not established but the court held that judicial review was available.

Richards LJ (with whom Swift J agreed) held that LQHT's actions in the management and allocation of housing stock could be challenged by way of judicial review. Although management and allocation of housing stock was not an inherently governmental activity, the context within which LQHT operated meant that it was exercising a public function. It was a non-profit-making charity which was regulated and controlled by the Housing Corporation and it received significant public subsidy (grants from the Housing Corporation in excess of £268m during 2004'“2006). The fact that LQHT had obtained a voluntary transfer of housing stock from a local authority was also relevant (despite the fact that only 10 per cent of LQHT's stock was acquired through LSVTs).

In so far as a function of LQHT was a public function which made it a public authority for HRA purposes, 'it should be equally amendable to judicial review on conventional public law grounds in respect of its performance of that function'. It did not follow that LQHT was amenable to judicial review in respect of all its functions; only where it was acting as a public authority (see para. [65] of the judgment).

New basis to challenge decisions

Weaver provides advisers of RSL tenants with a clear basis for challenging decisions to evict their clients. Whether a particular RSL is amenable to judicial review remains unclear. The circumstances of an RSL have to be considered to see whether there is a combination of factors that shows that it is acting as a public body, although in most cases the factors which influenced the court in Weaver will be present. In this regard, the fact that LQHT was not created by an LSVT would appear to be a significant extension to the decision in Donoghue (in which the RSL had been created to take an LSVT).

It is inevitable that the issue will be considered at a higher level (whether or not Weaver is appealed). Legislative changes may also become significant. The Housing Corporation is to be dissolved by the Housing and Regeneration Act 2008, which received Royal Assent on 22 July 2008.

Its regulatory functions will be assumed by the newly created Office for Tenants and Social Landlords. The Corporation's funding powers will form part of the functions of the new Homes and Communities Agency. Soon, the question will not be whether an RSL is amenable to judicial review but whether the new framework within which 'registered providers' of social housing carry out their functions renders such landlords public bodies for the purposes of judicial review.