R (Weaver) v London and Quadrant Housing Trust

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Richards,Mrs Justice Swift
Judgment Date26 Jun 2008
Neutral Citation[2008] EWHC 1377 (Admin)
Docket NumberCase No: CO/5258/2007

[2008] EWHC 1377 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Richards and

Mrs Justice Swift Dbe

Case No: CO/5258/2007

Between
The Queen (on The Application Of Susan Weaver)
Claimant
and
London & Quadrant Housing Trust
Defendant

Richard Drabble QC and Matthew Hutchings (instructed by Brian McKenna & Co) for the Claimant

Andrew Arden QC and Christopher Baker (instructed by Devonshires) for the Defendant

Hearing dates: 28–29 February 2008

Lord Justice Richards
1

The claimant, Mrs Susan Weaver, has been an assured tenant of London & Quadrant Housing Trust (“LQHT”) since 1993. LQHT is a registered social landlord (“RSL”) under the Housing Act 1996. In these proceedings she challenges LQHT's decision to seek an order for possession against her on ground 8 in schedule 2 to the Housing Act 1988 (at least eight weeks' rent arrears). By s.7 of that Act, the court must make an order for possession if ground 8 is established. It is contended that LQHT was in breach of a legitimate expectation in failing to pursue all reasonable alternatives before resorting to a mandatory ground for possession. The breach of legitimate expectation is also relied on in support of a contention that the decision was in breach of the claimant's rights under article 8 ECHR or article 1 of protocol 1.

2

Those grounds of challenge raise prior issues as to the amenability of LQHT to judicial review on a conventional public law basis and as to whether it is a “public authority” within the meaning of s.6(3)(b) of the Human Rights Act 1998. In advancing the case for the claimant, Mr Drabble QC has taken the latter point first. Applying the reasoning of the House of Lords in YL v Birmingham City Council [2007] 3 WLR 112 to the functions of RSLs, he contends that LQHT is for relevant purposes a public authority. If that is right, he contends that LQHT must also be amenable to judicial review on a conventional public law basis and that the court should not follow earlier authority to a contrary effect.

3

This is perhaps a strange way round in which to develop a case based primarily on breach of legitimate expectation, but I think it right to address the arguments in the terms in which they were presented. Mr Drabble also urged the court to decide the issue of public authority even if it was against the claimant on legitimate expectation and Convention rights, since the claimant has received public funding on the basis that this is regarded as a test case on the issue of public authority.

Social housing and registered social landlords

4

Social housing organisations provide affordable housing to those whose needs are not met by the market. About one half of social housing in England and Wales is provided by RSLs, amounting to some 2 million homes. Other categories of provider are local authorities as owners and managers of social housing; arm's length management organisations of local authorities; and a range of unregistered bodies, including for-profit providers.

5

A publication, Delivering Affordable Housing, issued in November 2006 by the Department for Communities and Local Government sets out the Government's aims for affordable housing and includes the following:

“30. Affordable housing includes social rented and intermediate housing, provided to specified eligible households whose needs are not met by the market. Affordable housing should:

- meet the needs of eligible households including availability at a cost low enough for them to afford, determined with regard to local incomes and local house prices; and

- include provisions for: (i) the home to be retained for future eligible households; or (ii) if these restrictions are lifted, for any subsidy to be recycled for alternative affordable housing provision.

31. Social rented housing is rented housing owned and managed by local authorities and RSLs, for which guideline target rents are determined through the national rent regime. The proposals set out in the Three Year Review of Rent Restructuring (July 2004) were implemented as policy in April 2006. It may also include rented housing owned or managed by other persons and provided under equivalent rental arrangements to the above, as agreed with the local authority or with the Housing Corporation as a condition of grant.

35. Normally, only households on local authority and RSL registers are eligible for social rented housing. Target rents are set under a national regime; are well below market levels; and, are normally based on relative property values, local earning levels and property size. When a household ceases to occupy a social rented home, it is normally made available to other households eligible for social rented housing. Social rented homes are normally owned and/or managed by a RSL (or other body agreed by the Housing Corporation), and will be required by regulation or contract to meet the criteria.”

6

That passage refers to target rents set under a national regime. Since December 2000 there has been a Government policy of some complexity, to which effect is given through the control and influence exercised over RSLs by the Housing Corporation, directed towards, inter alia, the achievement of a closer link between rents and the qualities which tenants value in properties, and the removal of unjustifiable differences between the rents set by local authorities and those set by RSLs. The policy is described in the Guide to Social Rent Reforms issued in March 2001 by the Department of the Environment, Transport and the Regions.

7

The Housing Corporation itself is 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 through a variety of providers, and to regulate and facilitate the proper performance of the RSL sector.

8

Pursuant to s.1 of the Housing Act 1996, the Housing Corporation maintains a register of social landlords. The requirements for registration include charitable or non-profit-making status (s.2) and satisfaction of other criteria laid down by the Corporation (s.5). By s.7 and schedule 1, RSLs are subject to detailed regulation.

9

The supervision and control of RSLs is one of the general functions conferred on the Housing Corporation by s.75 of the Housing Associations Act 1985. Its specific functions under the Housing Act 1996 include the power to determine standards of performance in connection with the provision of housing by RSLs (s.34), the duty to collect information as to the levels of performance achieved by them (s.35) and the power to issue guidance with respect to the management of housing accommodation by them and as to their own governance and management (s.36). Guidance with respect to the management of housing accommodation may relate to matters such as housing demands for which provision should be made, the allocation of housing accommodation between individuals, and the terms of tenancies and the principles upon which levels of rent should be determined.

10

The specific issue of legitimate expectation in this case arises out of guidance issued by the Housing Corporation in respect of evictions: I shall describe that guidance later in this judgment. Another relevant area of guidance, raised in the context of submissions on whether RSLs are public authorities, concerns rent levels. The departmental Guide to Social Rent Reforms, referred to above, contains an annex (Annex B) setting out the Housing Corporation's approach towards implementation of the Government's policy on the setting of social rents. The key principles include:

“B2.3 The Corporation's rent restructuring proposals will build upon the existing regime for rent influencing and will continue to seek to bear down on rent increases through the issue of a guideline limit for rent increases and influence rent levels through the restructuring framework.

B2.4 RSL's will be able to set rents at a level that allows them to meet their financial commitments, maintain their stock and continue to function as financially viable organisations. They must be able to meet their obligations to tenants.

B2.5 The Corporation will agree a derogation from the rent restructuring framework where an RSL can demonstrate that it cannot reasonably achieve the target rents over the 10 year implementation period ….”

11

There is no statutory requirement to take the Housing Corporation's guidance into account, but in considering whether action needs to be taken to ensure the proper management of the affairs of an RSL the Housing Corporation may have regard to the extent to which such guidance is being or has been followed (s.36(7)).

12

The Housing Corporation's overall approach to regulation is illustrated by its Regulatory Code and Guidance published in August 2005, the foreword to which states:

“The Housing Corporation's Regulatory Code sets out the fundamental obligations of housing associations in meeting the Corporation's regulatory requirements.

… We now use the Code as a reference point for all our regulatory activity, including our registration criteria and our published assessments of larger associations.

Regulatory guidance is shown alongside the Code. In assessing an association's compliance with the Code, the Corporation will consider whether guidance has been followed or whether any alternative action taken by the association has achieved, or is likely to achieve, the same objectives.

The Code and guidance reflect our full range of powers as a regulator. Among those is a specific...

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8 cases
  • R (E) v JFS Governing Body
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    ...a case where the party who was seeking the order would discontinue the proceedings if it was not made. In this case, as in Weaver v London Quadrant Housing Trust [2009] EWCA Civ 235, it is the other party who is in control of the appeal. But it was held in Weaver that it was nevertheless a......
  • R (Weaver) v London and Quadrant Housing Trust
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    • 17 February 2012
    ...see for example YL v Birmingham CC [2008] AC 95 (Lord Bingham of Cornhill and Baroness Hale of Richmond dissenting) and R (Weaver) v London and Quadrant Housing Trust [2009] EWCA Civ 587 [2010] 1 WLR 363 (Rix LJ dissenting). In those cases the context was whether the bodies were public bodi......
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1 books & journal articles
  • Trust, Distrust and Betrayal: A Social Housing Case Study
    • United Kingdom
    • The Modern Law Review Nbr. 72-2, March 2009
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