Gentoo High Court case fails to overturn public body ruling
Weaver battle looms
The controversy over whether housing associations are public bodies is set to drag on throughout 2010 after a new court case ducked the issue.
The latest judgement came as Inside Housing learned that the Ministry of Justice is ‘committed to consulting’ on the extent that the Human Rights Act is applicable to housing associations. And at a board meeting in November the Homes and Communities Agency pledged to look into the impact of the original ruling on housing associations.
It follows a High Court case involving Sunderland-based landlord Gentoo last week. The case was one of the first to be heard since the Court of Appeal ruled on a case involving London & Quadrant tenant Susan Weaver in June that associations should be considered as public bodies when making decisions on allocations and terminations of tenancies.
Housing associations are keen to challenge that ruling because the extent to which they can be viewed as public bodies is hotly contested.
The Gentoo judgement appears to make it more difficult for housing associations to find a test case to challenge the original Court of Appeal decision.
John Howell QC ruled that Gentoo won the case because the applicant had not exhausted other avenues of complaint before bringing a claim for judicial review.
He recommended that future cases with similar circumstances should be brought as ordinary claims rather than as claims for judicial review.
Nick Billingham, a partner at law firm Devonshires, said lawyers had hoped the Gentoo case would provide the chance to quash the Court of Appeal decision. ‘There was an expectation there would be a case moving to the Supreme Court quickly. I think we are going to see a retrenchment.’
Andrew Taylor, deputy chief executive of Gentoo Group, warned that despite this, the original Court of Appeal judgement meant associations were facing large legal bills.
‘While Gentoo has no issue with the principle of applicants challenging decisions, registered social landlords have to pay the cost of defending their position even when the applicant loses,’ he said.
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Readers' comments (11)
kass | 15/01/2010 11:33 am
A very telling way of how our social landlords care for their residents whose money pays the huge salaries and bonues of their directors.
I can't wait to see how much more residents money the HA's are going to squander in their attempts to deny Human Rights to their very same residents.
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Save yourselves | 15/01/2010 12:23 pm
But.... no. No more attempts to have a rational discussion with Kass.
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The Lurcher | 15/01/2010 12:50 pm
Lots and lots of it hopefully!
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Melvin Bone | 15/01/2010 1:12 pm
'registered social landlords have to pay the cost of defending their position even when the applicant loses'
Thats not right surely? If you have a gripe with a landlord and lose you should pay their costs as well...Seems fair to me...
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RICH | 15/01/2010 6:56 pm
I wonder if the associations who contributed to the "War chest" would like to go public so there tenants know who they're dealing with!
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john bull | 15/01/2010 8:14 pm
hi Melvine,
Neither right nore bloody fair.
Even if they had to, you would be sure they were being funded by legal aid, so we should all pay as usual.
There should be a ceiling on all such cases. the maximum legal aid any one should be entitled to should be £1000 in their liftime.
Anyway HA are separate independent legal entities with ther own accounts directors etc. So what is the argument all about, big fees for lawyers.
Tenants and taxpayers be damned.
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Jester | 18/01/2010 8:19 am
I have to agree with Kass. Its about time RSLs stopped trousering huge amounts of public money yet hide from FOI and other public law by saying theiy are private companies. This is one of the long standing disgraces is social housing.
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stephen West | 18/01/2010 10:02 am
RSL's want public money i.e. from the TSA and former Housing Corportaion but want to remain private companies, well they cant have their cake and be expected to be allowed to eat it themselves as many have over the last ten years been handed large swathes of former local authority housing at hugely discounted prices, and despite those who say that they had large repair bills to pick up as a consequence of Stock Transfers I have this to say they, still make huge profits each year and still pay their senior staff huge salaries and remuneration packages. Housing Associations and RSL's are public bodies in every sense of the word and are all propped up by the taxpayers of this country in terms of funding and certain tax breaks and advantages that other companies don't enjoy but can only dream about.
Stephen West
Chairman
OBHA Independent Leaseholders Group
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Joe Halewood | 18/01/2010 10:24 am
This report is flawed in many ways.
Firstly, it still infers the myth that if HAs are public bodies they are (automatically) subject to FOI. That is not so. The government through the MOJ would have to add them separately to the list of bodies to whom FOI Act applies. The same MOJ that ruled this out categorically in July 2009 is now "committed to consultation" it seems - how politically convenient! Frankly HAs should voluntarily commit to FOI requests en masse as there is no reason for them not to.
Gentoo won? Highly subjective opinion but not fact. The court ruled their documents and arguments were flawed, yet stated that because the Ombudsman had not been used that all other non-court routes had not been exhausted. A procedural point of no real merit. How many times has IH reported that councils have challenged an ombudsman decision? Have a quick look on this site and we see scores of such stories. So if in this case an Ombudsman had ruled for the tenant then the landlord would either have ignored the decision or challenged it. The court seem blithely unaware of such practicalities. Moreover, the tenant then would still have the opportunity then as would the landlord to go to court, so this decision is just a procedural one by the court and on the fact sof the case the lanldord lost their arguments if anyone would care to look at the judgment!
All that said, this case was ridiculous. A now joint tenant wished to xfer but the landlord stopped that xfer because he had outstanding arrears from a previous tenancy. The tenant argued the arrears were so old that they werent recoverable the court correctly ruled that they were. Legally the tenancy conditions didnt state that the landlord could prevent this on arrears of one party on a previous tenancy (a cock-up by the landlord) - Yet if the tenant had paid the arrears of just over £500 this matter would never have got to court or needed to. The tenant neverr disputed he owed the arrears and offered to pay in instalments which the landlord refused.
Two points then. The tenant has lost what he wanted because he diddnt pay what he knew he owed and as a result got masses of public funding through legal aid - that is wrong. The landlord has incurred massive cost by failing to accept his offer to pay in instalments - a stupid decision that has cost them far more in legal fees which they are now moaning about! An even stupider decision.
Yet the key issue here is that the court naively hold that the ombudsman service must be used before court action of this type is taken. That is just as stupid a decision as the tenant and landlord were in this case (especially as Gentoo were previously the council housing department) - a legal squabble at taxpayers expense that was never going anywhere least of all to the Supreme Court.
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kass | 18/01/2010 12:50 pm
It looks like Gentoo have been reckless in using public and tenants money in this particular case. The costs now will be passed onto their residents.
Now, because Gentoo have got not their way with this resident, who seem to have done absolutely nothing wrong as it seems he offered to pay the arrears one way or another, they brought up the Public Body issue.
How on earth can a social landlord justify denying human rights to its own residents, the very peaople who pay their Directors high salaries? Is not this typical of the systematic abuse social landlords are carrying out on their residents?
And why should any resident, happy or unhappy with their housing situation, allow this to go on?
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