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Home | RPs are public authorities for purposes of housing management functions

RPs are public authorities for purposes of housing management functions

26 June 2009

The Court of Appeal has confirmed registered providers (RPs) are now public authorities for the purposes of Section 6 of the Human Rights Act 1998, and can now have their decisions judicially reviewed.

Case background
This case involved Ms Weaver, the assured tenant of London and Quadrant Housing Trust (LQHT), an RP, who persistently went in and out of rent arrears.

LQHT issued possession proceedings under mandatory Ground 8 of Schedule 2 of the Housing Act 1988. The proceedings were dismissed due to there being less than eight weeks rent arrears at the time of the hearing.

Ms Weaver accrued rent arrears again, and LQHT served a further Notice under Ground 8. Ms Weaver alleged that as LQHT was regulated by the Housing Corporation (at that time) she had a ‘legitimate expectation' that in accordance with the Housing Corporation's guidance, LQHT would try alternative ways to resolve the matter before relying on Ground 8.

In essence, she felt that LQHT should have served a Notice under discretionary Grounds 10 and 11 of Schedule 2 of the Housing Act 1988. Furthermore, LQHT's decision to rely on Ground 8 was in breach of Ms Weaver's rights and Article 1 of Protocol 1 of the European Convention on Human Rights - the protection of property. 

The High Court previously held:

• LQHT was a non-profit making organisation whose primary object was to provide housing accommodation and assistance. It was governed by its rules and funded by rental income and grants of private funding. 
• Whilst only approximately 10% of LQHT's housing stock was transferred from the public sector, that amount of stock was still deemed to be a significant portion.
• The duty to co-operate with Local Authorities under Section 170 of the Housing Act 1996 in respect of the allocation of accommodation was also significant. 
• The fact that LQHT was regulated by the Housing Corporation (now the TSA), which itself was an executive non-departmental public body responsible to the Secretary of State, and had responsibility for supervising and regulating Registered Providers.
• LQHT's business (as a whole) was heavily subsidised by the State as a result of its receipt of substantial funding from the Housing Corporation and its rental income from housing benefit.

Taking into account all of the above factors, the High Court held that LQHT amounted to a public authority for the purpose of its housing management and allocation functions.

It naturally followed that insofar as LQHT was undertaking a public function it should be subject to judicial review. 

The Court of Appeal upheld the High Court's original decision. 

There were several features supporting the contention that the provision of housing by LQHT amounted to a public function namely: 

• there was a significant reliance on public financein its allocation of social housing LQHT operated in very close harmony with the local authority, assisting it to meet its statutory duties and objectives
• the provision of subsidised housing could properly be described as ‘governmental'
• LQHT was acting in the public interest and had charitable objectives
• LQHT was subject to regulation, and this in turn was to ensure the objectives of central Government policy concerning a vulnerable group in society were achieved, with further low cost housing effectively provided to those in need of it
• the vast majority of RPs' tenants enjoyed statutory protection
• the act of terminating a tenancy was so entwined with the provision of social housing that it could not be deemed to be an act of a ‘private' nature 

What this means to you
As RPs are now likely to be considered a public authority for the purposes of their housing management and allocation functions, your decision-making processes can be challenged in the High Court by way of judicial review, or such issues can be raised in a defence to possession proceedings. 

So it is essential that files are kept in order and up to date. They must accurately reflect the decision- making process, highlighting why a particular decision was made. 

RPs must also ensure they have a review procedure that is reviewed regularly and always adhered to.   Tenants should be informed of the review procedure at each stage of the decision-making process. 

We must wait and see whether this case, which clearly has a significant impact upon housing management functions, opens the floodgates to High Court challenges.

Certainly, RPs should be prepared for challenges from their tenants' solicitors initially, who I am sure  will wish to test the water.

Should you receive threats of judicial review, applications for judicial review, or have any queries about this case, please contact us.

© Shoosmiths. This page is for general information: it is not legal advice. Please read our full terms and conditions for details of the disclaimers and exclusions which apply.

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Neelam Sharma

Associate
T: 03700 86 4191
I: +44 (0)121 625 4191
E: neelam.sharma@shoosmiths.co.uk