We briefly noted yesterday the decision of Supreme Court to reject London & Quadrant Housing Trust’s application for permission to appeal in the controversial Weaver case, but we thought this important development merited further attention. 

The Court of Appeal held in June that a Registered Social Landlord (“RSL”) could be a hybrid public authority for the purposes of section 6(3)(b) of the Human Rights Act 1998 and the decision to evict an assured tenant was not a private act and was amenable to judicial review (R (Weaver) v London & Quadrant Housing Trust  [2009] EWCA Civ 587). According to the Supreme Court (Lord Hope, Lady Hale and Lord Brown), the application by LQHT “did not raise an arguable point of law of general public importance which ought to be considered by the Supreme Court at this time.”

RSLs play a crucial role in the provision of social housing and are accordingly regulated by the Tenant Services Authority (“TSA”), having previously been regulated by the Housing Corporation. Many of them manage social housing that was previously owned by local authorities and so make decisions on housing allocation and management which would previously have been made by local authorities.

However, there has been recognition in recent years that RSLs need to adapt their structures and commercial practices in order to remain competitive and viable as businesses such that they can generate funds to pay back large loans from the private sector and re-invest in their social housing stock. In doing so, the remit of RSLs is often now much wider than the allocation and management of social housing and many RSLs are engaging in private sector schemes to generate surpluses to reinvest in the social housing stock for the benefit of their tenants. As a consequence, RSLs are faced with a broad range of decisions, some of which may arguably be of a quasi-public nature but many of which are more obviously categorised as private law decisions, either as between a landlord and tenant or in relation to other commercial practices.

The Weaver case concerned the decision by LQHT to evict a tenant on account of rent arrears.  It was a poor case on the merits and failed at first instance ([2008] EWHC 1377 (Admin).  However, that did not prevent the Court from making a finding that LQHT was a public authority in respect of decisions relating to the allocation and management of social housing.  The decision on the merits was not appealed, but the question of the amenability of RSLs to public law/human rights challenges was taken to the Court of Appeal.  As the Court there noted, that left the matter of wholly academic interest in the case itself (since it failed on the merits) but of crucial broader interest.

Unfortunately, neither the judges at first instance nor the Court of Appeal grappled with the broad range of decisions that RSLs are faced with and gave little guidance as to what will and will not be regarded by the courts as the exercise of a public function.  As a result, RSLs are left in muddy waters trying to work out when, if at all, they will be amenable to judicial review or claims under he Human Rights Act.

That the Supreme Court does not find this issue of sufficient public importance is all the more surprising in view of the fact that the Ministry of Justice has made it clear in a recent paper presented to Parliament that “the Government’s view at this time is the provision of housing by a landlord is not inherently a function of a public nature” (see paragraph 72 of the paper which can be found here).  It may be that the Court did not consider it justified to spend its time on a case where the issue at stake was academic.

It will therefore be very interesting to see whether the Court can be persuaded to address this again in the future or whether the Government will beat them to it by legislating in this area. In the meantime, RSLs can expect a few claim forms coming their way from disgruntled tenants.

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