Public interest

Associations were already public bodies for the purposes of EU procurement legislation. Now they are for human rights purposes too, which means they must take account of tenants’ rights such as the right to a family life and the right to a fair trial when applying for an eviction order. They will probably come to be seen as public bodies for freedom of information purposes too.

The implications of all that are far-reaching and unpredictable enough (just read the comments on Inside Housing’s story) but they would be dwarfed by any move to reclassify associations as public bodies for financial purposes, a decision that is down not to the courts but to the Office for National Statistics (ONS).

If that happened, and housing association borrowing was classified as public borrowing, it would remove their key advantage over local authorities at a stroke and undermine pretty much the whole funding model for building new homes and refurbishment via stock transfer too. 

It’s not clear what would trigger reclassification, but the legal moves in other areas, plus the bail-outs that have revealed that devices like the PFI are not as private as they seem, have surely brought it closer. 

From a quick read of the Appeal Court judgement (downloadable here) it’s clear that there is no single test of what constitutes a public body. The judges even disagreed between themselves, with two saying that L&Q is and one that it isn’t. 

A whole range of factors came into play in the majority ruling, including: the funding of associations through grant and housing benefit; their powers to apply for anti-social behaviour and parenting orders; the fact that 10% of L&Q’s stock is ex-local authority; statutory regulation; nomination agreements.

Lord Justice Elias said in his ruling: ‘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 RSL within that concept.’

A bit like the complicated test for whether someone is employed or self-employed, it depends on the particular circumstances of the case. From the ruling it seems quite possible that a different RSL in different circumstances would not be a public body. Pending any possible appeal to the House of Lords, the judgement makes things a bit clearer but not completely clear. 

But while that might mean trebles all round for the legal profession, the ruling also seems to leave the Tenant Services Authority with a few issues to resolve. For a start, if it exists to promote the interests of tenants, surely, like the Equality and Human Rights Commission, it should welcome the extra new rights the judgement gives them. 

Looming on the horizon is the extension of its regulation remit to cover almo and local authority tenants too. That will again raise the case for a single tenancy for all social housing tenants and in particular the case for stopping associations using ground 8 to evict tenants with no grounds for stopping associations using ground 8 to evict tenants with no grounds for intervention by the courts.

That, ironically, was the ostensible reason why Susan Weaver took L&Q to court in the first place - and she lost on that. But the long-term implications of the case she launched will not go away so easily.