R (Weaver) v London and Quadrant Housing Trust

Hearing dates : 23 and 24 February 2009

The appellant in this case, the London and Quadrant Housing Trust (“the Trust”), provides social housing, which means housing at less than the market rate, to those in need. The Trust is a registered social landlord (“RSL”), being registered under the Housing Act 1996. The principal question in issue is whether, when terminating the tenancy of someone in social housing, the Trust is subject to human rights principles. The Divisional Court (Richards LJ and Swift J) held that it was. The Trust appeals that ruling and contends that it was not.

The case comes before the court in somewhat unusual and not altogether satisfactory circumstances. The respondent Mrs Susan Weaver, who was the claimant before the Divisional Court, is an assured tenant of the Trust. She was served with an Order for Possession for rent arrears. She wished to challenge that Order on the basis that the Trust had acted in breach of a legitimate expectation arising out of Guidance issued by the Housing Corporation. She also contended that to evict her from her home would interfere with her rights under Article 8 of the European Convention on Human Rights. However, that argument was advanced in a way which also depended upon her being able to establish the legitimate expectation.

Even if a legitimate expectation could be established on the facts, the argument could successfully be advanced only if the Trust, in the exercise of its eviction powers, was a public body attracting the operation of judicial review principles. The Article 8 argument depended upon establishing that the Trust was a public authority within the meaning of section 6(3)(b) of the Human Rights Act 1998 and that the act of termination was not a private act within the meaning of section 6(5). The Trust contended that no legitimate expectation was created, and that in any event it was exercising purely private functions when it dealt with issues relating to the allocation and management of housing, and that all its acts in performance of those functions, including the termination of the tenancy, were private acts. Accordingly, it was subject to neither human rights nor judicial review principles.

The Divisional Court found that there had been no legitimate expectation created and therefore the case failed on the facts on both grounds. Strictly it was unnecessary for the court to determine the wider question raising the public law status of the Trust. However, the court did so. It held, contrary to the submissions of the Trust, that the Trust was a public authority under section 6(3)(b) arising from the exercise of its function of allocating and managing its housing, and that the act of terminating the tenancy was not a private act under section 6(5). The court also held that it was susceptible to judicial review principles in the exercise of that function.

Notwithstanding that they had succeeded in defending the particular application, the Trust wished to appeal that finding in relation to its status in public law. The Divisional Court granted permission to appeal and facilitated this by making a formal declaration, which could be the subject of challenge, in the following terms:

“(a) that the management and allocation of housing stock by the defendant (including decisions concerning the termination of a tenancy) is a function of a public nature, with the effect that the defendant is to be regarded as a public authority in that respect for the purposes of the Human Rights Act 1998, section 6(3)(b);

(b) that the defendant is accordingly amenable to judicial review on conventional public law grounds in respect of its performance of the above function.”

I make two observations about the way the appeal has come before us. The first is that as Lord Collins of Mapesbury and Rix LJ note, the applicant no longer has any interest in the appeal, and as a consequence the issue has come before the court in a somewhat abstract and academic form. We have, however, had the benefit of argument from the Mr Drabble QC on behalf of the applicant (who has the benefit of a protected costs order) as well as some very helpful written submissions from Mr Luba QC on behalf of the intervener, the Equality and Human Rights Commission. The second observation relates to the form of the declaration. It focuses on whether the Trust is a public body falling within section 6(3)(b) of the 1998 Act by virtue of its housing and allocation management functions. This reflects the way in which the issue was argued before the Divisional Court. It does not, however, satisfactorily encapsulate the real issue in the case which is whether the termination of this tenancy was a private act within section 6(5). I return to this point later in the judgment.

Social housing and registered social landlords.

In order to understand the background of this case I shall first consider the role of RSLs in the provision of social housing, and then consider the particular features of the Trust.

Social housing providers seek to provide affordable housing to those who cannot secure their housing needs in the market. It is government policy to provide such housing. Those on lower incomes are able to rent properties at below market value. RSLs provide about one half of the social housing in England and Wales.

RSLs were at all material times regulated in various ways by the Housing Corporation. This is an executive non-departmental public body responsible to the Secretary of State. It can determine standards of performance with respect to the provision of housing by RSLs; collect information as to the levels of performance achieved by them; and lay down guidance with respect, inter alia, to the management of housing accommodation. Although there is no specific obligation to follow the guidance, one of the functions of the Housing Corporation is to ensure that an RSL is properly managed, and in that context it may have regard to the extent to which guidance is followed.

Housing management guidance is the subject of consultation and approval by the Secretary of State. RSLs are subject to detailed guidance on a number of matters, including the terms of tenancies, the principles upon which the level of rents should be determined, and the way in which the power of eviction should be exercised. It was the guidance on evictions which was said to give rise to the legitimate expectation relied upon by the claimant in this case.

There is also statutory regulation through sections 8–10 of the 1996 Act restricting the power of RSLs to dispose of land or housing (although there is a wide range of exceptions); in general the consent of the Housing Corporation is required to any disposal.

RSLs also typically receive grants from the Housing Corporation in respect of expenditure incurred in connection with their housing functions. Generally grants are made to assist in the acquisition of specific housing stock. There is a bidding process in which interested RSLs submit bids, and the Housing Corporation assesses value for money and financial viability. Once the grant is made, the money has to be kept in the public domain. If the properties acquired with the grant are disposed of, the moneys received must be repaid, unless they are reinvested in further new homes available for social housing. A review of social housing legislation in 2007 found that the ratio of private finance to public funding was in the region of 2:1.

RSLs also have an important role in assisting local authorities to carry out their statutory housing policies. This is not simply a matter of choice but is the subject of legislation. A local authority must allocate houses in accordance with certain priorities. They are required by law to make an allocation scheme, and RSLs are the only body which they are statutorily obliged to consult before adopting a scheme.Section 170 of the 1996 Act requires RSLs to co–operate with local authorities if requested “to such extent as is reasonable in the circumstances” by offering accommodation to those with priority under the local authority's allocation scheme. Typically this co–operation is achieved by nomination agreements made between the authority and the RSL. In this way the RSL is deeply involved in assisting the local authorities in their obligations towards the homeless. Over half (some 54%) of RSL lettings in England are made to local authority nominees. A further 10% are made through allocations made pursuant to a common scheme in which the RSL and local authority are partners.

This relationship between RSLs and local authorities is reinforced by the fact that ownership of many local authority houses are...