Housing Associations at risk of Judicial Review

Are Social Landlords Public Authorities?

R (Weaver) v London & Quadrant Housing Trust [2009]

On 19th June 2009 the Court of Appeal held that a Registered Social Landlord had acted as a Public Authority for the purposes of Section 6 of the Human Rights Act 1998. The importance of this that their decision to serve a Notice of Seeking Possession on a Tenant could be subject to Judicial Review.

The Facts

Susan Weaver was an Assured Tenant of London & Quadrant Housing Trust (LQHT). LQHT served a Notice of Seeking Possession on her on Ground 8, Schedule 2, of the Housing Act 1988 which is a mandatory ground for possession. She alleged that LQHT was in breach of a legitimate expectation in that they had failed to pursue all reasonable alternatives before using a mandatory ground. She also alleged that their decision breached her rights under Article 8 of the European Convention.

Decision

By a majority, the Court of Appeal held that the decision by LQHT to terminate Ms Weaver’s Tenancy was in principle subject to the Human Rights Act.

In deciding that this was a public act, the Court identified the following factors that helped them to decide that this was the exercise by LQHT of a public function:-

  • There was significant reliance on public finance;
  • The statutory duty on LQHT to work closely with local authorities in the allocation of its accommodation;
  • LQHT’s contribution to one of the government’s objectives in providing subsidised housing;
  • LQHT acting in the public interest and having charitable objectives;
  • And the nature of the regulatory framework to which it was subject.

Importance

For Ms Weaver, the Judgment was of little assistance as her claim had already failed in the lower court, but this case is of potentially great importance for other Social Landlords and their Tenants.

The case of Kay v Lambeth Council [2006] is currently before the European Court of Human Rights and a decision is expected by the end of 2009 on whether UK law gives adequate protection for tenants to have the proportionality of their evictions determined by an independent tribunal. As it stands, as a result of the House of Lords decision in Kay v Lambeth Council, such a challenge will currently only succeed in exceptional circumstances, but that this may change once the decision of the European Court of Human Rights is known.

LQHT has decided to appeal the decision but the implications of this Judgment are immense in that landlords may now be public authorities for both the Human Rights Act and Judicial Review. They will therefore need to be able to answer any challenges brought against them in the Administrative Court and should be examining their policies and procedures in the light of this.

For more information please contact Margaret Stevenson, Housing Law Specialist at Brain Chase Coles. email: mstevenson@brainchasecoles.co.uk

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