Public authority – Registered social landlord – Possession proceedings for rent arrears – Mandatory ground 8 in Schedule 2 to Housing Act 1988 – Whether appellant landlord a public body subject to Human Rights Act 1998 – Whether termination of tenancy a private act – Appeal dismissed
The respondent was an assured tenant of the appellant. The latter was a non-profit-making charity and registered social landlord (RSL) subject to regulation by the Housing Corporation under the Housing Act 1996. The appellant was governed according to its own rules by its board and shareholders, which did not include representatives of any local authority. It was funded partly by rental income and private borrowing and partly by grants. Although some of its housing stock had been transferred from the public sector, the majority had either been built by the appellant or transferred from private ownership. The appellant carried out a range of activities, including arranging and managing lettings, acquiring land and building homes for sale. Some of its properties were let as market-level rented accommodation, but it also assisted local authorities in discharging their housing functions by providing accommodation for nominated tenants.
In 2006, the appellant obtained an order for possession against the respondent on the ground of eight weeks’ arrears of rent, pursuant to ground 8 in Schedule 2 to the Housing Act 1988. The respondent sought judicial review of the order. She contended that the appellant’s decision to resort to the mandatory ground of possession in ground 8, rather than one of the discretionary grounds, was a breach of her legitimate expectation and her human rights. Issues arose as to whether: (i) the appellant was amenable to judicial review on a conventional public law basis; and (ii) it was acting as a “public authority” within the meaning of section 6(3)(b) of the Human Rights Act 1998. The Divisional Court found that: (i) the appellant was a hybrid authority; (ii) it was acting as a public authority in the management and allocation of its housing stock; and (iii) the act of terminating the tenancy was not a private act under section 6(5). However, it held that that no legitimate expectation had arisen on the facts of the case: see [2008] EWHC 1377 (Admin); [2009] 1 All ER 17; [2008] PLSCS 183. The appellant appealed against the finding as to its status in public law.
Held (Rix LJ dissenting): The appeal was dismissed.
Where a body was found to be a hybrid authority and was exercising functions of a public nature, the crucial question was whether the act in question was a private act within section 6(5), such that the body would not be deemed to be a public authority with respect to that act. The source of the power would be a relevant but not a decisive factor in determining whether an act was private. The nature of the act had to be viewed in the context of the body’s activities as a whole, including a consideration of the nature of the functions to which the act was contributing. The character of an act was likely to take its colour from the character of the function of which it formed part. However, not all acts concerned with carrying out a public function would constitute public acts. Moreover, it would be possible, although unlikely, for an act not to be a private act notwithstanding that the function with which it was most closely connected was a private function: Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37; [2004] 1 AC 546 and L v Birmingham City Council [2007] UKHL 27; [2008] 1 AC 95 considered.
The act of terminating the respondent’s tenancy was not a private act when considered in the wider context of the housing function being carried on by the appellant. Features that brought the act of terminating a social tenancy within the purview of the 1998 Act included: (i) the appellant’s significant reliance on public finance; (ii) the fact that in allocating social housing, the appellant worked closely with local government, helping the local authorities to achieve their objectives; and (iii) the fact that the provision of subsidised housing, as opposed to the provision of housing generally, could properly be described as governmental. Further, the appellant was acting in the public interest. It had charitable objectives, and was subject to intrusive regulation of aspects of allocation and management, and such matters as rent and eviction, in such a way as to ensure that the objectives of government policy were met. Cumulatively, those factors brought the provision of social housing by the appellant within the concept of public functions.
Although the act of terminating a tenancy involved the exercise of private law rights, it was bound up with the provision of social housing as a public function. Acts that were necessarily involved in the regulation of that function also constituted public acts. The grant of a tenancy and its subsequent termination were part and parcel of deciding who should be allowed to take advantage of the public benefit of social housing and were not merely incidental or supplementary to that principal function. Accordingly, the termination of the respondent’s tenancy was a public act and was, in principle, subject to human rights considerations.
The protection afforded by the 1998 Act would extend to all tenants of the appellant who were in social housing, not merely those in properties that were acquired as a result of state grants. However, it would not apply to those tenants who were not in social housing and were paying market rent.
Andrew Arden QC and Christopher Baker (instructed by Devonshires) appeared for the appellant; Richard Drabble QC and Matthew Hutchings (instructed by Brian McKenna & Co) appeared for the respondent; Jan Luba QC (instructed by the legal department of the Equality and Human Rights Commission) appeared for the intervenor.
Sally Dobson, barrister
