No through road

t is unlikely that L&Q v Weaver, although talked of in terms of alarm, will make a significant difference to any registered social landlord. Extra money has been spent asking the Supreme Court (House of Lords as was) to change the case, which decided that housing associations are subject to the Human Rights Act in certain circumstances, and it has declined.

Any well-conducted housing association that keeps a proper record of what it does in relation to actual and potential tenants, and why it does it, is unlikely to face any difficulty. Even associations that do keep good records know decisions of the court can look capricious from the landlord’s perspective; those that don’t suffer more often in the courts.

Also, in my view, the issue of whether housing association debt will be added to the public balance sheet is not a cause for concern.

Key questions

In practical terms, there are two things for landlords to worry about: ‘Are my records good enough?’ and ‘Do I want to use the mandatory grounds for possession?’

If associations are subject to the Human Rights Act (and the present state of the law suggests that they are) they will need to check that they have a good record, for instance, of why they use mandatory grounds for possession, which the Tenant Services Authority rather disapproves of, rather than the approved discretionary grounds - otherwise it is business as usual. Generally, if the court decides the tenant is a in the wrong and should go, the association will be safe.

While new risks may arise in relation to allocation, looking after tenants’ well-being, rent collection and eviction, essentially the problems are no different from those that associations already handle.

L&Q v Weaver simply decided that the Human Rights Act provisions apply to housing associations. As a consequence, those claiming against associations can claim that one of the articles of the Convention on Human Rights are engaged (legal speak for ‘a defence that can be used by the tenant’).

It is thought - and all cases against local authorities tend to suggest - only article 8, which gives citizens a right to private family life, is applicable to claims by or against landlords. Generally the courts have held, and are holding, that article 8 is not a protection against eviction for non-payment of rent or other serious misbehaviour where the court orders possession.

The other articles in the Convention do not seem to offer any basis to make a significant impact.

Strange route

L&Q v Weaver is also odd in the way the decision was reached. This will affect its usefulness as a case in the future. Common law courts work well when they decide a particular issue in relation to a fact situation and the law that relates to those facts.

In this case, Mrs Weaver could not prove the facts necessary to engage article 8. Since she was going to lose whether or not the Human Rights Act applied, a normal court would say it wasn’t going to decide if it did apply or not because the question was irrelevant. However, everyone in court probably thought it was an interesting question so why not give it a whirl.

(An interesting question is one that fascinates lawyers but where a well-advised client should shut up their purse and say it doesn’t interest them.
As a result, as Lord Collins of Mapesbury said: ‘this court is being asked to determine the question of principle divorced from any plausible factual scenario in which the question might arise. In effect, this court… is being asked to give an advisory opinion.’

One of the crucial practical differences on the facts in this case may well have been that the court was given no choice about whether or not to make the order because L&Q used ground 8 (if the tenant is behind on rent as set out in the act, the court must order possession). You can read this case as the judges effectively saying: ‘If you don’t give us a chance to decide if possession is fair, what else can you expect?’

kjenkins@wslaw.co.uk

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