Briefing: Weaver v L&Q

The case

Essentially what happened in this case was that London and Quadrant took possession proceedings against Ms Weaver relying on the mandatory ground for possession (ground 8). This ground provides that the court must make an order for possession if more than eight weeks arrears of rent is owed.

Ms Weaver argued that under her tenancy agreement her landlord had agreed to comply with Housing Corporation guidance that Housing Associations should only use ground 8 as a last resort.

She argued in the High Court that by virtue of the provisions in her tenancy agreement there was a legitimate expectation that L&Q would not seek to evict her using ground 8.

The problem with the legitimate expectation argument is that it is only available against a body that is susceptible to judicial review, which L&Q was not (at least before the decision in the High Court).

It was argued on behalf of Ms Weaver that L&Q was a public body within the meaning of the Human Rights Act because of some key features of how it functions. For instance:

• it receives public subsidy to fulfil an important function of government by providing subsidised housing for those in need
• it has a duty to co-operate with local authorities by offering accommodation to people with priority under the local authority’s allocation scheme
• it is closely regulated - previously by the Housing Corporation and now by the Tenant Services Authority – on the rent it charges and the way in which tenancies can be terminated.

The verdict

Ms Weaver’s argument on the legitimate expectation failed. However the High Court then decided that L&Q was a public authority within the meaning of the Human Rights Act arising from its functions of allocation and management of its housing.

The court also held that the act of terminating a tenancy was not a private act and that L&Q was susceptible to judicial review in the exercise of its functions of allocating and management of its housing (including decisions concerning the termination of a tenancy).

This decision was upheld by the Court of Appeal. The court said that the key issue it had to decide upon was whether the act of terminating a tenancy was a private act. In determining that question the court said that it is important to ‘focus on the context in which the act occurs’.

The court said the features which brought the act of terminating a social tenancy within the Human Rights Act were:

• upon analysis of L&Q’s functions of allocating and managing housing, there is a significant reliance on public finance (a substantial public subsidy) which enables L&Q to achieve its objectives
• in the allocation of social housing, the trust operates in close harmony with local authorities assisting them to achieve their statutory duties and objectives. The court held that the allocation agreements in practice severely restricted the freedom of L&Q to allocate properties. This was not by choice but by virtue of the statutory duty to co-operate
• L&Q, as one of the larger registered social landlords, makes a valuable contribution to achieving the government’s objectives of providing subsidised housing. L&Q was therefore in effect helping to provide a governmental function
• The regulations to which it is subject on matters such as rent and eviction are designed to ensure that the objective of government policy towards those in need of subsidised housing are achieved. The regulations were intrusive and restrict the power to dispose of property.

The court held that all these factors, taken together, were sufficient to establish that the provision of social housing by L&Q was in effect a public function. The court further held that the act of terminating a tenancy has to be considered in this context. Accordingly the acts which are necessarily involved in the regulation of this public function (i.e. allocation and termination of tenancies) must also be public and not private acts.

The implications

The question as usual is what this decision means to housing associations. The first important point to make is that the Court of Appeal acknowledged that its decision did not mean that every RSL providing social housing will necessarily be in the same position as L&Q. The question of the public status of the body will depend of the facts of the particular case.

In reality however, RSLs that are similar in character to L&Q in terms of how they are funded and their relationship with local authorities are likely to be treated in a similar manner to L&Q. I do not believe that the fact that all housing associations are subject to regulatory control will itself be sufficient.

On the Human Rights Act issue the court itself observed that, because of binding House of Lords decision on the rights of a public authority landlord to enforce a claim for possession, ‘the practical implications of extending the protection of the convention to tenants of RSLs must be very limited’.   

The real impact of the decision is likely to be judicial review challenges to decisions of RSLs who appear very similar in character to L&Q. Allocation and management decisions of such RSLs are likely to be subject to challenges on conventional grounds for bringing judicial reviews. This is clearly unfamiliar territory for RSLs and they will need further advice to ensure that their practices and procedures will not render them open to challenges.

Abimbola Badejo is a barrister, and specialist in housing law. He is also a member of Inside Housing’s expert panel, who can be contacted through our Ask the Experts forum

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