The Court of Appeal has reached an important decision as to when the actions of a registered social landlord (RSL) are liable to judicial review. In R (on the application of Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587; [2009] PLSCS 187, a tenant challenged the Trust’s decision to seek an order for possession on the ground that she was eight weeks in arrears of rent. The tenant argued that the Trust should have exhausted other avenues before evicting her, and that it was in breach of Article 8 of the European Convention on Human Rights (which guarantees respect for home life).
The High Court dismissed the tenant’s claim. However, much to the dismay of many other landlords in a similar position, the court did agree that the Trust was acting as a “public authority” for the purposes of the Human Rights Act 1998 (1998 Act), and was liable to judicial review, because the social rented housing sector is heavily subsidised by the government and plays a major part in the implementation of government policy.
On appeal, the case turned on provisions in the 1998 Act that bring organisations that exercise both public and private functions within the scope of the 1998 Act. Where the actions of such an organisation are the subject of a legal challenge, the key question to ask is whether the action constitutes a public or private act. Private acts of such organisations fall outside the scope of the 1998 Act.
Therefore, the Court of Appeal had to decide whether, because it involves the exercise of a contractual power, the act of terminating a social tenancy could be characterised as a private act. It ruled by a majority that it could not. The provision of social housing, in the context of this particular body, constituted a public function. It could not be said that the exercise of contractual rights, which are necessarily involved in performing that function and, are central to the concerns of a tenant, fall outside the scope of the 1998 Act. Consequently, the Trust was liable to judicial review when allocating, managing and terminating tenancies.
Does this protection extend to all tenants of the Trust who are in social housing, or only those in properties that were acquired as a result of public funding? The court held that the protection should apply to all its tenants in social housing (but perhaps not to tenants who pay market rents and are not housed in social housing). The court also stressed that the status of an organisation is fact sensitive. Consequently, it will not necessarily follow that every RSL will be in the same position as the Trust.
Rix LJ delivered a strong dissenting judgment. He argued that, once a tenant has been accepted by a RSL, the contractual tenancy and the parties’ subsequent relationship are governed by private law, as is any other landlord and tenant relationship.
Allyson Colby is a property law consultant
