The Alchemists' Search for the Philosophers' Stone: The Status of Registered Social Landlords under the Human Rights Act

Published date01 September 2003
Date01 September 2003
The Alchemists’ Search for the Philosophers’ Stone:
The Status of Registered Social Landlords
under the Human Rights Act
Jill Morgan
Social housing in Great Britain is undergoing a radical transformation with the
transfer of local authority housing to housing associations, more particularly
registered social landlords (RSLs). While the former are clearly ‘public
authorities’ for the purposes of the Human Rights Act (HRA), the status of the
latter is less clear. The first part of this article addresses the increasingly
important role played by housing associations in the provision of social housing,
and the significant implications of the stock transfer process. It goes on to explore
the meaning of ‘public authority’ for the purposes of claims under the HRA, taking
into account available approaches to interpretation as well as the tests
traditionally used to determine amenability to judicial review. It concludes that
there is a strong case for acknowledging that RSLs are hybrid authorities for the
purposes of the HRA, given in particular their ‘publicness’ and the fact that they
are often carrying out the same functions as local authorities.
The emergence and development of local authority housing in Great Britain in the
twentieth century is regarded by some as a success story. By the late 1970s, local
authorities were responsible for managing around 30 per cent of the housing
stock. Local government had also made a major contribution to the general
improvement of housing conditions. They had cleared nearly two million
substandard houses since the 1930s and provided grants, since 1949, to renovate
more than three million others.
A contrasting view is that the historic failings of
council housing have largely been responsible for its demise.
Kilroy, for example,
argued that ‘council housing should have become the Marks and Spencer of
Instead, it appeared that management was often monolithic and
bureaucratically insensitive, tenants lacked choice, and there was little mobility in
or between authorities, transfers normally being confined to households of special
It is scarcely surprising, perhaps, that during the past two decades, a radical
restructuring of what has come to be known as social housing has taken place,
with housing associations playing a far more prominent role, mainly at the
expense of local authority involvement.
Although owner-occupation is the dominant tenure in England, the contribu-
tion of renting remains important: of 19.8 million residential properties, 5.7
million are rented. Of a total of 20.6 million households, 6.4 million live in rented
accommodation. Something over two-thirds of them (4.3 million) rent either from
local housing authorities or housing associations, and just under one third
Norwich Law School, University of East Anglia.
1 M. Loughlin, Legality and Locality (Oxford: Clarendon Press, 1996) 100.
2 I. Cole and R. Furbey, The Eclipse of Council Housing (London: Routledge, 1994).
3 B. Kilroy, ‘Labour housing dilemma’ New Statesman, 28 September 1979.
rThe Modern Law Review Limited 2003. (MLR 66:5, September). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
(2.1 million) from private landlords.
The voluntary sector, in the form of housing
associations, remains the smallest of the main tenure categories yet it is ‘the fastest
growing and most dynamic part of the housing system at the present time.’
In the
decade to 1998 the stock of dwellings owned by housing associations in England
doubled, from 519,000 to 1,048,500.
It has been predicted that council housing
will have disappeared in England and Wales by 2015.
The shift of responsibility for the provision of social housing from local
authorities to housing associations continues under current government policies.
This raises important issues of both accountability and the forms of redress
available to tenants (and prospective tenants) who are dissatisfied with decisions
reached by their (prospective) landlords. A number of related issues serve to
highlight and define the problem. First, the growing involvement of housing
associations in the supply of housing means that they are necessarily making more
decisions, and the number of their decisions which may be questioned is likely to
Secondly, while many housing associations have a tradition of
supplying special needs or ‘supported’ housing for particular groups (for example,
older people, the disabled, and ex-offenders), others which have specialised in the
provision of ‘general needs’ housing are now finding themselves operating in areas
of care and support which were formerly the domain of statutory social services.
Finally, problems ancillary to housing provision, as for instance anti-social
behaviour, require landlords to engage in activities which may be only tangentially
concerned with housing but which have important wider social and legal
Whilst the activities of housing associations and local authorities have much in
common there has been a marked difference in the regulatory regimes to which
they are subject. Thus, the exercise by local authorities of their housing functions
is susceptible to judicial review but the actions (or inactions) of housing
associations are not. Housing associations registered with the Housing Corpora-
tion (known since the Housing Act 1996 as Registered Social Landlords (RSLs))
are, however, subject to regulatory control by the Housing Corporation in
numerous essential respects. These include their development activity, the rents
which they set, the allocation of properties, and corporate governance structures
and practices.
The role of the Corporation has been strengthened over recent
years, reflecting the sizeable public subsidy which RSLs receive and also the
contribution of private investment in the sector.
The Corporation’s powers in
relation to an unsatisfactory RSL include the making of appointments to its
governing body, the removal of employees or governing body members, and even
the withdrawal of funding.
5 The Law Commission, Renting Homes. 1: Status and Security, Law Com Consultation Paper
No 162 (London: The Stationery Office, 2002) para 1.64.
6 P. Malpass, Housing Associations and Housing Policy: A Historical Perspective (Basingstoke:
MacMillan Press, 2000) 3.
7Ibid, 291.
8 R. Walker, ‘How to abolish public housing: implications and lessons from public management
reform’ (2001) 16 Housing Studies 675, 675.
9 Department of the Environment, Transport and the Regions, Quality & Choice: A Decent Home
for All. The Housing Green Paper (London: DETR, 2000) paras 7.9–7.19.
10 A. Belcher and V. Jackson, ‘Housing association governance in Scotland and England’ [1998]
Juridical Review 104, 112.
11 See P. Malpass and D. Mullins, ‘Re-conceptualising voluntary housing: the implications of
local authority stock transfer’,
12 n 8 above, 692.
13 Housing Act 1996, Sched 1.
The Alchemists’ Search for the Philosophers’ StoneSeptember 2003]
701rThe Modern Law Review Limited 2003

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT