[2009] EWCA Civ 587; [2010] 1 WLR 363; [2009] L&TR 26; [2009] HLR 40; [2010] UKHRR 1371; [2009] LGR 962; (2009) Times 26 August, 18 June 2009
In a Ground 8 case, the Court of Appeal considered whether a housing association was acting as a public authorityTimes 21 June; 20 June 2007
Mrs Weaver was an assured tenant of London & Quadrant Housing Trust (LQHT), which was a registered social landlord (RSL) (now a private registered provider of social housing). Her tenancy terms and conditions contained a statement by LQHT that: ‘In providing a housing service we will comply with the regulatory framework and guidance issued by the Housing Corporation.’ By a claim for judicial review, she challenged LQHT’s decision to seek an order for possession against her on Housing Act 1988 Sch 2 Ground 8 (at least eight weeks’ rent arrears). Relying on guidance issued by the Housing Corporation in respect of evictions, she argued that LQHT was in breach of a legitimate expectation in failing to pursue all reasonable alternatives before resorting to a mandatory ground for possession. She also argued that LQHT was ‘a public authority’ and, accordingly, the Human Rights Act 1998 s6(1) made it unlawful for LQHT to act in a way which was incompatible with Article 8 and Article 1 of Protocol No 1 ECHR.
The Divisional Court dismissed her claim for judicial review ([2008] EWHC 1377 (Admin); August 2008 Legal Action 38) but in doing so held that the management and allocation of housing stock by LQHT was a function of a public nature and LQHT was therefore to be regarded as a public authority within section 6(3)(b). Ms Weaver did not appeal but LQHT appealed against the finding that it was a public authority.
The Court of Appeal, by a majority, dismissed LQHT’s appeal. Elias LJ noted the important role that RSLs played in assisting local authorities to carry out their statutory housing policies and how deeply involved they are in assisting local authorities in their obligations towards the homeless. Some 54 per cent of RSL lettings in England are made to local authority nominees. He also noted that the Housing and Regeneration Act 2008 provides a statutory definition of social housing, and that it is a statutory prerequisite of registration as an RSL under section 112 that the body demonstrates that it provides accommodation at rents below market rates to those in housing need. After considering YL v Birmingham CC [2007] UKHL 27; [2008] 1 AC 95; [2007] HLR 44 and Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank [2003] UKHL 37; [2004] 1 AC 546, Elias LJ stated that:
•the purpose of section 6 is to identify those bodies which are carrying out functions which engage the responsibility of the UK before the ECtHR;
•a public body is one whose nature is, in a broad sense, governmental;
•in determining whether a body is a public authority, the courts should adopt a ‘factor based approach’. This requires the court to have regard to all the features or factors which may cast light on whether the particular function under consideration is a public function or not, and weigh them in the round.
If an authority is a core public authority, all its functions are public functions, as are all acts pursuant to those functions. An authority is a hybrid authority if only some of its functions are public functions. Even then, the particular act is not subject to convention principles if it is a private act: Human Rights Act 1998 s6(5). In determining whether an act is a private act, the source of the power is a relevant factor. However, that is not decisive since the nature of the activities in issue in the proceedings is also important. The character of an act is likely to take its colour from the character of the function of which it forms part. It was conceded that LQHT was a hybrid authority. The essential question was therefore whether the act of seeking termination of the tenancy was a private act. When considering that question, it was important to focus on the context in which the act occurred; the act could not be considered in isolation. With regards LQHT’s function of allocating and managing housing, there was a substantial public subsidy which enabled it to achieve its objectives. In its allocation of social housing, it operated in very close harmony with local government, assisting it to achieve the local authority’s statutory duties and objectives. The provision of subsidised housing was a function which can properly be described as ‘governmental’. ‘Almost by definition it is the antithesis of a private commercial activity’ (para 70). LQHT made a valuable contribution to achieving the government’s objectives of providing subsidised housing and could properly be described as providing a public service. Taking all these factors together, the provision of social housing was a public function. Elias LJ found that seeking the termination of a social housing tenancy was not a private act. He said:
… the act of termination is so bound up with the provision of social housing that once the latter is seen, in the context of this particular body, as the exercise of a public function, then acts which are necessarily involved in the regulation of the function must also be public acts. The grant of a tenancy and its subsequent termination are part and parcel of determining who should be allowed to take advantage of this public benefit. This is not an act which is purely incidental or supplementary to the principal function … (para 76)
The protection afforded by the Human Rights Act 1998 extended to all tenants of LQHT in social housing and not just those in properties acquired as a result of state grants. However, those principles do not apply to those tenants of LQHT not housed in social housing and paying market rents. Lord Collins agreed with Elias LJ. Rix LJ dissented.
Note: The Supreme Court gave reasons ([2010] UKSC 29) for its refusal of permission to appeal against the decision of the Court of Appeal. The reasons state that the point of law is clearly one for the Supreme Court, but is not suitable for determination on the facts of this case. Should a suitable case be identified, the Supreme Court’s view is that consideration should be given to a leapfrog appeal (Administration of Justice Act 1969 s13).