Landlord and tenant – Assured tenancy – Judicial review – Claimant applying for judicial review of decision of defendant housing association with charitable status not to approve exchange of assured tenancy – Whether defendant’s decision amenable to judicial review – Application dismissed
The claimant occupied a one-bedroomed flat in Bethnal Green, E2, as an assured tenant. The tenancy agreement which contained a non-assignment clause. In 2009, when he took up his occupancy, his landlords were the Crown Estate Commissioners. However, his tenancy was subsequently transferred to the defendant, a housing association with charitable status. In 2015, the claimant notified the defendant that he wished to exchange his tenancy with the tenant of a property in Edinburgh. The defendant declined to approve such an exchange.
The claimant applied for judicial review of that decision on the basis that the defendant was amenable to judicial review as a public body in relation to the decision. It argued that the defendant had failed to follow its own policy in relation to mutual exchange and that, in any event, it had not taken account of its duty under section 149 of the Equality Act 2010. Accordingly, the defendant had unlawfully fettered its discretion and its decision was irrational.
The defendant contended that its decision was not amenable to judicial. The claimant had to satisfy a three-fold test in order to bring a public law challenge the decision: (i) it had to be shown that the defendant was not required to make the decision it had by reason of contractual obligations; (ii) it had to be shown that the defendant was exercising a public function when it refused to approve the exchange of tenancy; (iii) it had to be shown the decision itself was not a private law decision. The defendant argued that the claimant could not satisfy any one of the three limbs. Further, even if its decision were amenable to judicial review, the decision could not be categorised as irrational or unreasonable or unlawful in any other way.
Held: The application was dismissed.
On the facts of this case, the court was not satisfied that the defendant was exercising a public function in relation to the claimant’s tenancy. The defendant purchased the properties from CEC using funds raised on the open market, not via any public subsidy or grant. Although the properties were not let a full market rent, it was not clear that they were pure social housing. The key workers for whom the property was reserved included those with a family income of up to £60,000 pa. The commercial housing market in London adequately served the needs of those workers. Many workers in occupations not covered by the nomination agreement relating to the CEC properties were served by the open market. The provision of below market rent properties for such workers did not fall within the definition of social housing in section 69 of the Housing and Regeneration Act 2008. Further, the defendant was not acting in close harmony with a local authority to assist the local authority to fulfil its statutory duty and rents for the properties transferred from CEC were not subject to the same level of statutory regulation as social housing in general. Some public function was fulfilled by the provision of homes for key workers in London. However, it did not follow that all tenants of a registered social landlord would be able to claim the benefit of a public law remedy just because the landlord was exercising a public function in relation to some or even most of its tenants. In the present case, the cumulative effect of the various factors did not have the sufficiency of public flavour to constitute a public act amenable to judicial review: R (on the application of Weaver) v London and Quadrant Housing Trust (Equality and Human Rights Commission intervening) [2009] EWCA Civ 587; [2009] PLSCS 187 applied, R (on the application of McIntyre) v Gentoo Group Ltd [2010] EWHC 5 (Admin); [2010] PLSCS 9 considered.
Martin Westgate QC and David Cowan (instructed by TV Edwards LLP) appeared for the claimant; Jon Holbrook (instructed by the Peabody Trust) appeared for the defendant.
Eileen O’Grady, barrister
