Human rights ruling will have "huge impact" on housing associations
A Court of Appeal ruling that a housing trust is a public body for human rights purposes will have a "huge impact" on the sector, housing lawyers have said.
A Court of Appeal ruling that a housing trust is a public body for human rights purposes will have a "huge impact" on the sector, housing lawyers have said.
Helen Tucker, partner at Anthony Collins in Birmingham, said last summer's High Court decision in R(on the application of Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587 had already provoked many judicial review challenges against her housing association clients.
Since then, she said other cases had been stayed pending the ruling by the Court of Appeal. Tucker said the majority of housing associations could now be regarded as public bodies.
Though the case involved possession proceedings, Tucker said a whole range of decisions could now be vulnerable to judicial review, particularly those relating to probationary tenancies and anti-social behaviour.
Delivering judgment, Lord Justice Elias said Mrs Weaver's argument that evicting her would breach her rights under Article 8 (right to private life) depended on the trust being a public body under s.6(3) of the Human Rights Act 1998.
He applied four criteria set out by Lord Nicholls in Aston Cantlow v Wallbank [2003] UKHL 37 to determine whether the trust was a public body.
Elias LJ said there was a significant reliance on public finance and, while not taking the place of local government, the trust operated in 'very close harmony' with it, helping achieve the authority's statutory duties.
'The provision of subsidised housing, as opposed to the provision of housing itself, is, in my opinion a function which can properly be described as governmental,' he said. 'Almost by definition it is the antithesis of a private commercial activity.'
For similar reasons, Elias LJ said that the trust could properly be described as providing a public service of a nature described by Lord Nicholls in his fourth factor.
Lord Justice Elias added that the trust was acting in the public interest, had charitable objectives, and statutory regulation ensured that it met objectives in line with government policy and restricted its power to dispose of land and property.
'None of these factors taken in isolation would suffice to make the functions of the provision of housing public functions, but I am satisfied that when considered cumulatively, they establish sufficient public flavour to bring the provision of social housing by this particular RSL (registered social landlord) within that concept.'
Dismissing the housing trust's appeal, Elias LJ said: 'The determination of the public status of a body is fact sensitive.'
Lord Justice Lawrence Collins (now Lord Collins) agreed, with Lord Justice Rix dissenting.
Brian McKenna, principal of McKenna & Co in west London, acted for Mrs Weaver. He said that although the ruling had said courts should consider the question on a case-by-case basis, it was likely that the vast majority of housing associations could be considered public bodies.
'Their tenants now have the protection of the Human Rights Act.'
He added that London & Quadrant had applied for leave to appeal to the House of Lords.