Who holds the keys?

There have been frustrated noises from housing associations about a judicial review claim against one of their number actually failing. This frustration follows the judgment in R (McIntyre) v Gentoo Group Ltd [2010] EWHC 5 (Admin).

The Court of Appeal had found in Weaver (R) v London & Quadrant Housing Trust [2009] EWCA Civ 587 that L&Q (and presumably most registered social landlords) exercised a public function in their housing management role and, in that role, L&Q fell under the Human Rights Act 1998 and also was subject to public law challenge by way of judicial review. L&Q sought permission to appeal to the Supreme Court, which was refused. However, the Supreme Court, unusually, gave a specific reason for the refusal. This case was academic '“ Ms Weaver had no stake in the outcome '“ but this was an issue suitable for the Supreme Court and a leap-frog appeal was desirable.

Another case on the issue was positively invited. RSLs had hoped that McIntyre would indeed be it, but, alas for them, the McIntyres' judicial review claim failed on another point entirely and so no appeal could be made from the High Court finding that Gentoo was exercising a public function in its housing management role and was subject to public law principles, following Weaver.

To muddy the waters, the government in its response to the report of the Joint Committee on Human Rights stated that 'the function of providing social housing is not a function of a public nature'.

But, while we wait for the Supreme Court to have a crack at the issue, what does it actually mean for RSLs and is there a potential impact for other accommodation providers who have considered themselves to be private bodies, outside the Human Rights Act and public law?

The RSLs' main concern appears to be that being a public body in their housing function will cause them to be treated as public bodies under EC funding and procurement rules. This seems unlikely; it is not the same definition of 'public' that is at issue, for example. But they have also raised concerns that their day-to-day housing management decisions will face an increase in human rights and public law challenges by tenants.

It is worth recalling that Ms Weaver's judicial review challenge was to L&Q seeking possession under the mandatory ground 8 of the Housing Act 1988. This failed; ground 8 was not found to be disproportionate in its effect on Ms Weaver's rights under article 8. Further, at the time of writing there is no viable human rights challenge to a decision made in accordance with current housing law. This may change in the near future in view of the ongoing tussle between the House of Lords/Supreme Court and the European Court of Human Rights. But any housing management decision by an RSL made in accordance with statute and common law is likely to be unchallengeable on human rights grounds as of now.

Greater chance of challenge

Public law may prove to be a richer source of challenges and RSLs may have to become quickly familiar with judicial review, both legally and tactically. It is likely to prove more rigorous than the oversight of the Housing Corporation, and now the Tenant Services Authority, or the housing ombudsman. Individual decision may be challenged as failing to follow policy or being unlawful, but there may also be broader challenges to allocation or transfer policies. The McIntyre claim was an example, where NSHC's decision not to approve a mutual exchange on the grounds of a tenant's rent arrears from a previous property was held to be unlawful in public law because it was not a permissible private law restriction on consent to assign. That claim foundered on the lack of available remedy at the time of hearing, but it is an indicator that both individual decisions and full policies are open to public law challenge.

In addition, occupants of properties or land where an RSL is the landlord will also have the public law defence to a possession claim, set out in Doherty v Birmingham CC [2008] UKHL57, that the decision to seek possession is one that no reasonable person would consider justified. The history of such defences against local authorities suggests the chances of success are not high, but they will no doubt be made.

Supported homes run by local authorities have faced a number of human rights and public law challenges, particularly on closure and the withdrawal of live-in wardens. Although these have largely been unsuccessful, it is likely that similar challenges will be brought against RSLs running sheltered accommodation.

Private care homes providing care under local authority contracts have already fallen under the Human Rights Act, following the introduction of Health and Social Care Act 2008, but the House of Lords' original decision in YL v Birmingham CC [2007] UKHL 27 that such homes were not public bodies remains currently valid for any other private body providing residential care with public funding, e.g. hospices. Weaver was based on very specific conditions of state funding and regulation and if other 'private' providers are to be held to be public bodies, it will be on the specific facts.

Those advising and acting for RSLs may want to review existing policies on housing management for any obvious potential challenges; and there is a further incentive for RSLs to ensure that staff are making decisions according to policy and that they understand the grounds and limits of any discretion. Meanwhile, those solicitors with public law experience in acting for tenants and occupiers have a new tool in challenging the decisions and conduct of housing associations.