Court rules housing associations are public bodies
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Housing associations are public bodies and susceptible to claims under the Human Rights Act, London’s Court of Appeal confirmed today.
By a two-to-one majority, the Appeal Court judges backed a High Court decision a year ago which left the country’s 2,000-plus registered social landlords, which include a wide array of different types of bodies including the YMCA, potentially exposed to costly judicial review proceedings which could not be taken against them if they were non-public bodies.
Housing association London and Quadrant had argued that the decision should be overturned, claiming that the future ability of housing associations to finance their operations could be jeopardised by the High Court ruling of Justice Richards and Mrs Justice Swift, and that it could potentially pose a threat to the future delivery of affordable housing.
Lord Justice Elias and Lord Collins of Mapesbury - formerly Lord Justice Lawrence Collins when he heard the appeal in March - today ruled that the High Court judges were right.
In a dissenting judgement, Lord Justice Rix said that he would have allowed the social landlord’s appeal.
The case focused on London & Quadrant tenant, Susan Weaver, who was fighting against moves to evict her from her Hampton, south west London home.
Mrs Weaver challenged moves by London & Quadrant to evict her on the basis that that she had at least eight week’s arrears.
Her lawyers argued that the eviction moves breached her legitimate expectation that London & Quadrant would pursue all reasonable alternatives before launching possession proceedings. It was also argued that the eviction moves breached Mrs Weaver’s Human Rights to ‘family life.’
Her claim was dismissed by the court and Lord Justice Richards said he considered that London & Quadrant was justified in the action it had taken. Mrs Weaver had ‘history of substantial and repeated defaults’.
However, it was the court’s decision to allow the case to proceed in the first place that represented the major threat to housing associations.
London and Quadrant’s lawyers had argued that the status of housing associations such as London and Quadrant did not render them amenable to judicial review proceedings. The High Court rejected that argument.
Now the social landlord has failed in its appeal against that decision. It had sought a ruling from the Court of Appeal that it is not a public authority for the purposes of the Human Rights Act.
Its counsel, Andrew Arden QC, told the court in March: ‘London and Quadrant submits that it is not in any relevant respect a public authority under the 1998 Human Act. There is nothing inherently governmental about London and Quadrant’s function of providing, managing and seeking to terminate housing allocation.
‘There is simply nothing about the relevant activity of London and Quadrant which suggests that it is performing a function of a public nature, when serving notice with a view to termination of an assured tenancy. To the contrary the action of serving notice has been said to be a private act.’
He said that the decision had exposed 2,000 new bodies to the jurisdiction of the Divisional Courton decisions relating to housing allocation, rent increases and evictions, despite an earlier binding Court of Appeal ruling to the contrary
Lord Justice Elias ruled that there were a number of features which, when taken cumulatively, ‘bring the act of terminating a social tenancy within the purview of the Human Rights Act’.
He said that the Trust was acting in the public interest with ‘charitable objectives’.
He said that the Trust’s function of allocating and managing housing involved a significant reliance on public finance, in the form of a public subsidy that enables it to carry out its publicly desirable objectives. He also said that the Trust works in very close harmony with local government, helping local authorities to meet their statutory duties and objectives.
He added that the provision of subsidised housing to the poorer section of the community could properly be described as a governmental function, adding: ‘Almost by definition it is the antithesis of a private commercial activity.’
He concluded: ‘None of these factors taken in isolation would suffice to make the functions of the provision of housing public functions, but I am satisfied that, when considered cumulatively, they establish sufficient public flavour to bring the provision of social housing by this particular registered social landlord within that concept.’
He added that the act of terminating a tenancy was ‘so bound up with the provision of social housing’ that it must also constitute a public act, susceptible to judicial review.
See a full briefing on the Weaver v L&Q ruling
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Readers' comments (34)
Lynne Qwerker | 18/06/2009 3:10 pm
Does this judgement imply that RSLs will also be subject to Freedom of Information requests or would that be a separate matter?
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Robert Latham | 18/06/2009 3:28 pm
This decision is consistent with the view of the Joint Committee on Human Rights that the provision social housing is inherently of a public nature.
It is an issue which the government has fudged and should have been put beyond all doubt by an express provision in the Housing and Regeneration Act 2008.
May the decision now be welcomed by all sides, namely:
(i) The TSA as a decision that empowers tenants (have they issued a press release yet?);
(ii) Responsible RSLs who believe that they should be accountable in law for their activities and that they should not violate the human rights of their tenants;
(iii) Tenants who now have an effective remedy in respect of abuse of power; and
(iv) Our nationalised banks who provide RSLs with 67% of their capital funding and now act in the public interest.
Three Cheers!
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Richard Teulon | 18/06/2009 3:43 pm
Why don't you ask the experts?
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Leigh Robinson | 18/06/2009 4:05 pm
Hello,
I am a senior support worker. My thoughts on this ruling are;
What changes will it bring about in the service we provide (supported acc for single homeless)?
It's clear people seem very concerned but I have no idea what the impact may be? If someone could simplify the implications I would appriciate it.
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Jim Bauld | 18/06/2009 4:07 pm
the Freedom of Information Acts (UK 2000, Scotland 2002),have specific lists of bodies which are designated as "public authorities".....as yet RSLs are not designated.
http://www.opsi.gov.uk/acts/acts2000/ukpga_20000036_en_1
http://www.opsi.gov.uk/legislation/scotland/acts2002/asp_20020013_en_1
that is of course a matter which is subject to change/further legislation!!
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vernony | 18/06/2009 4:21 pm
Well done Justices they have seen through this appeal which was only interested in the difficulties it would create for housing providers. That residents may have rights was very inconvenient to them.
One up for justice !
vernon J Yarker
chairman
The Sheltered Housing UK Association
www.shelteredhousinguk.com
mailbox@shelteredhousinguk.com
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Joe Halewood | 18/06/2009 6:22 pm
If this judgment states as it appears that HAs are ameanble to Judicial Review (by virtue of being a public body) then it may have some very positive implications.
For example, any decision by a HA to remove resident wardens is a public body making that decision and so the matter of this emotive issue has a clear legal route by way of JR.
Yet all HAs now cannot use ground 8 (in isolation) for evicting serious bad payers and so this ruling is essentially a charter for social housing tenants not to pay rent.
In general terms what this ruling appears to say is that HAs are no different to council housing departments. As such ANY decision they make is a public law issue capable of challenge because that decision is made by a public body.
The implcations of HAs being classed as public bodies will manifestly change the face of social housing (general needs, sheltered and supported housing.)
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vernony | 18/06/2009 10:42 pm
I did put a comment earlier but it seems to have disappeared. First thanks to their Lordships for this clear example of justice. Judges don't often come in for praise from the public, but I am pleased to record mine.
I cannot see why London and Quadrant had to bring this appeal, as they had already won their case over eviction, were they pressured into it by others ?
Thanks too for the comments of Robert Latham and funny you should mention the TSA. they don't seem to have said anything on the subject before, even though, clearly to any thinking person, an injustice being visited upon the tenants. I have had several dealings with them and I must record that I am unimpressed. TPAS did even less, despite my having asked them no less than three times to make a statement . What is the point of putting oneself up to represent tenants if one does not even dignify them with a reply when they are in a crises ? Liberty, well they declined to help too. The national press tabloids studiously avoided the subject although made aware of it many times
Several MPs professed an interest but never carried it further than a question in the HoC and accepted the standard churned out replies by the DCLG and took it no further.
Residents must take great care now because the reasons why RSLs qualified as fulfilling a public function and so subject to Public Law, can be changed by legislation, Certainly the DCLG will be miffed by this outcome because it was they who have avered all along that RSLs were private companies and so not accountable under Public Law . This ruling has restored the human rights they had as previous council tenants, to anything up to 2,000,000 people who have been subjected to LSVT . Now they have got their human rights back and they must be prepared to defend them hotly if changes are made to housing laws that are objective to ridding them of the human rights again.
Perhaps we can get down to challenging, before the law, the housing providers who have removed Wardens from Sheltered Housing, often against residents wishes and without any consultation, or meaningful consultation.
Certain housing providers, it must be said, bucked the trend and on the basis that they were running Sheltered Housing they kept their Wardens whilst the majority, probably in the interests of profitability, were busy ditching theirs!
Sheltered Housing now awaits the outcome of the JOAN GARBET -v- CIRCLE 33 Housing Association, case , which has been held up by WEAVER.
Lastly thanks to the supporters who regularly contribute to this web-site whose comments have almost unanimously been in favour of the Warden retained in Sheltered Housing
Sincerely
Vernon J Yarker
Chairman
The Sheltered Housing UK Association
www.shelteredhousinguk.com
mailbox@shelteredhousinguk.com
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Jim Paton | 19/06/2009 4:04 am
Very welcome decision, though it's very likely to be further appealed to to the House of Lords.
The arrogance and unaccountability of RSLs to their tenants and the wider public is a scandal and anything which helps to rein them in is worth having. The down side is that remedies such as judicial review are difficult or impossible for many tenants to use.
Personally, I've had enough of organisations which merely refer to the fact that they are registered charities (which not all RSLs are, of course) as justification for any action they chose to take and evidence that it must be right.
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Stephen West | 19/06/2009 7:36 am
Hooray and thank heavens for common sense landmark decisions from the Law Lords who are interpreting the law rightly in this case, for too long now Government has fudged this issue. RSL's /Housing Associations should not be able to hide behind the cloak of anonymity and be protected by Data Protection Laws and not be subject to Freedom of Information or until now the Human Rights Act, whilst at the same time picking up huge handouts and grants from the tax payer through the previous Housing Corporation now TSA and other Government bodies and in income derived from assured Housing Benefit and certain tax breaks because of their supposed Charitable Status. This is especially so by those RSL's and Housing Associations who have largely benefitted by subsidies and lucrative large scale voluntary Stock Transfers of former Council Housing.
Try asking a RSL or a Housing Association how much their remuneration packages are that they pay their Board Members and senior Executive Officers, and see them come back with reasons why they do not have to provide the public with requests for information, because they are considered to be private organisations and not subject to Freedom of Information Laws, yet act as if they are Local Authorities in themselves taking over the roles of local authorities in many instances on some estates with the provision of nurseries, benefit advice services, support groups for residents with disabilities or those from Black Minority and Ethnic backgrounds, single parents ,drug and alcohol misuse advice and support, involvement with Social Services/ providers of retirement homes and sheltered accommodation , provision of offices for local Safer Neighbourhood Police teams, play grounds, maintenance of former council maintained roads, footpaths etc.
No they are not private landlords or businesses though they act as if they are, as providers of social housing they should be made to come clean and be seen to be transparent by Government introducing legislation forcing them to be subject to Freedom of information Laws, this ruling by the Law Lords is a positive step in the right direction.
Stephen West
Committee Member
Orbit Bexley Housing Association Independent Leaseholders Group
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