Public authority – Registered social landlord – Possession proceedings for rent arrears – Mandatory ground 8 in Schedule 2 to Housing Act 1988 – Whether defendant landlord a public body subject to Human Rights Act 1998 – Whether actions challengeable on public law grounds – Whether breach of legitimate expectation that all reasonable alternatives would be pursued before resorting to mandatory ground – Claim dismissed
The claimant was an assured tenant of the defendant, which was a non-profit-making charity and registered social landlord (RSL) regulated by the Housing Corporation (HC) under the Housing Act 1996. The defendant was governed according to its own rules by its board and shareholders, which did not include representatives of any local authority. Although some of its housing stock had been transferred from the public sector, the majority had either been built by the defendant or transferred from private ownership.
Between 2004 and 2006, the claimant was persistently in arrears with her rent. In April 2006, the defendant served a notice of its intention to seek possession on the ground of eight weeks’ outstanding rent arrears, pursuant to ground 8 in Schedule 2 to the Housing Act 1988. By section 7 of the 1988 Act, the court was obliged to make a possession order if ground 8 was made out. Following an adjournment, the defendant’s possession claim was dismissed on the basis that a cash payment on the date of the April notice had reduced the arrears to less than eight weeks’ rent. Immediately after the hearing, the defendant served a further notice of intention to seek possession; by then, more than 19 weeks’ rent was outstanding.
The claimant sought judicial review of the decision to serve the new notice. She contended that the defendant’s decision to resort to a mandatory ground of possession was in breach of her legitimate expectation. She relied upon a statement in the defendant’s standard terms and conditions that it would comply with the regulatory framework and guidance issued by the HC; that guidance stated that where a tenant owed more than eight weeks’ rent arrears, housing associations should first pursue all other reasonable alternatives to recover the debt before seeking possession under ground 8. She further submitted that the defendant had contravened her human rights under Article 8 of, or Article 1 to the First Protocol to, the European Convention on Human Rights. An issue arose as to whether the defendant was amenable to judicial review on a conventional public law basis and whether it was a “public authority” within the meaning of section 6(3)(b) of the Human Rights Act 1998.
Held: The claim was dismissed.
(1) The defendant’s management and allocation of housing stock was a function of a public nature such that the defendant was to be regarded as a public authority within section 6(3)(b) of the 1998 Act. Those management functions included the termination of a tenancy. Although the management and allocation of housing stock was not in itself an inherently governmental activity, the nature of the defendant’s activities and the context in which it operated its business made its situation different from that of an ordinary commercial business. Although the defendant was constituted and governed by its own rules, was owned and managed its own housing stock and entered into private law contracts with tenants, it was also a non-profit-making charity. It acted for the benefit of the community in providing housing for the poor and other disadvantaged groups and operating within the sector of social rented housing, which was not only subject to regulations but was permeated by state control and influence with a view to meeting government aims for affordable housing; in that sector, RSLs worked side by side with, and could in a real sense be said to take the place of, local authorities: YL v Birmingham City Council [2007] UKHL 27; [2007] 3 WLR 112 and Poplar Housing & Regeneration Community Association Ltd v Donaghue [2001] EWCA Civ 595; [2002] QB 48 applied. Of particular importance was the nature and extent of the public subsidy of the defendant’s activities by means of social housing grants awarded by the HC, under section 18 of the Housing Act 1996, for the purpose of increasing the housing stock available in the social rented housing sector; that was one of the means by which the state secured the delivery of affordable housing to those who were eligible. Another relevant feature was the voluntary transfer of housing stock to RSLs from the public sector, again reflecting the fact that they were performing functions of the same kind as local authorities. The duty of co-operation with local authorities, under section 170 of the 1996 Act, was also significant. Although RSLs relied upon private law rights and had no relevant statutory powers, that did not preclude them from being public authorities.
(2) So far as a function of the defendant was a public function that made it a public authority for the purposes of the 1998 Act, it was amenable to judicial review on conventional public law grounds. However, the legitimate expectation alleged by the claimant, namely that the defendant would pursue all reasonable alternatives before resorting to a mandatory ground for possession, was too tenuous and general in character to be enforceable in public law. The statement in the defendant’s terms and conditions could not be read as an unambiguous promise to do everything set out in the HC’s guidance; that statement was not intended to give the guidance the status of a statutory rule book, which it did not have under the statue or the HC’s own practice. Moreover, even if there had been an expectation as alleged, it had not been breached on the facts of the case. The claimant’s Convention rights had not been breached.
Richard Drabble and Matthew Hutchings (instructed by Brian McKenna & Co) appeared for the claimant; Andrew Arden QC and Christopher Baker (instructed by Devonshires) appeared for the defendant.
Sally Dobson, barrister