The UK Supreme Court rules on London & Quadrant Housing Trust v Weaver
The UK Supreme Court, sitting on 5 November 2009, has refused to give London & Quadrant Housing Trust permission to appeal against the majority decision of the Court of Appeal in this landmark case.
The Background
Ms Weaver was an assured tenant of London & Quadrant Housing Trust (LQHT). On a number of occasions over several years, she had been in rent arrears and LQHT had served on her several notices seeking possession. She had challenged LQHT’s decision to serve the latest notice, which had relied only on the mandatory ground for possession in Ground 8 (to Schedule 2, Housing Act 1988), alleging that such action was in breach of a legitimate expectation and/or in breach of her Convention right under Article 1/Protocol 1 (the obligation to respect human rights).
The crux of the case was whether an RSL should be considered a public authority for the purposes of housing management and allocation. The High Court decided it should be and this was upheld by the Court of Appeal. By a majority, that Court decided that the act of terminating a tenancy was public rather than private in nature. Having reached that conclusion, it followed that RSLs were amenable, or answerable, to challenge under the Human Rights Act 1998 and open to judicial review.
LQHT sought permission from the UK Supreme Court to appeal the decision of the Court of Appeal, but permission has just been refused – a decision that will, no doubt, cause consternation among RSLs.
How did the Courts reach their decision?
The Courts have determined that LQHT is a hybrid public authority, rather than a pure public authority such as a council or police force.
In reaching that decision, the Courts had regard to certain key points about LQHT:
- It relied on public funding
- It worked closely with the local authority in relation to allocation of housing stock
- It was acting in the public interest
- It had some functions of a public nature – tackling anti-social behaviour was an example
- It was regulated by a Government agency and promoted governmental policy objectives
Certain facts were highlighted:
- No one on the board was a representative of a local authority or other public body
- Only about 10% of the stock of LQHT had been transferred from public ownership
- Less than half its development budget would be coming from grants in the next two years
- 64% of its lettings were to local authority nominees
It was made clear in the Court of Appeal judgment that each case would be considered individually on its merits, but it seems likely that most, if not all RSLs will fall into the category of hybrid public authority.
Q: What does this mean for RSLs?
A: Human rights defences!
It is likely that far more defences will be brought to possession proceedings and other actions, relying upon infringement of human rights. The most likely cases to be defended on this basis are:
- Where a mandatory ground for possession is used
- Demotion actions, particularly, where possession is sought once a tenancy has been demoted
- Family intervention tenancies
There may also be human rights arguments proffered in respect of allocations and management of housing stock.
What can RSLs do to prepare?
Whilst all good RSLs already use their best efforts to bring transparency and equality to all areas of management and allocation, they will now be called upon to demonstrate and evidence this. A human rights defence may be defeated where an RSL can show without doubt that there has been due regard to fairness and to the human rights of the tenants involved.
RSLs need to give serious attention to the implications of the Weaver decision. Among other things:
- Polices may need to be revised
- The decision-making process before bringing proceedings will need to be clearly recorded
- Some evidence may now be challenged, such as the use of CCTV
Moreover, there are wider implications. It seems clear that every RSL will need to examine its constitution, liability and accountability in light of this decision. It will need to review allocations and the way tenancies are terminated, and there will need to be a fresh look at the effects of the Human Rights Act and the Freedom of Information Act on its management policies and procedures.
We would be happy to provide further information, and to deliver briefing and training sessions to look more closely at the impact of the Weaver decision, please contact Mary Rouse.
