24 March, 2009
The High Court is due shortly to consider whether a housing association (Circle 33 Housing Trust) was justified in ending a residential warden service, because it could be viewed as a public body performing a public function. The hearing is due to take place in early April 2009 and the decision reached in the case could have significant consequences to all providers of social housing in the United Kingdom.
Judge Justice Pitchford has granted an oral hearing to Eastbourne sheltered housing tenant Joan Garbet, who launched a legal challenge after her resident warden was told she had to retire in January 2009. Solicitors acting on behalf of the residents wrote to the landlord asking them to state whether they were prepared to review their decision to cut the warden service. They refused to do so.
A temporary injunction was obtained for the service to continue, but at a hearing in early February 2009, this was lifted. Residents of the association state that their legitimate expectations have been breached and that as a consequence of the decision, they are in real and immediate risk. Similar decisions over onsite wardens have been taken by approximately 10 other social landlords, thus highlighting the potential significance of the present case.
In making the order, the judge said there was a 'live issue' over whether the housing association was a public body performing public functions and that the issues in the case warranted a full hearing.
The case has echoes of the situation in R (on the application of Weaver) v London Quadrant Housing Trust  EWHC 137 where the claimant (an assured tenant) applied for judicial review of the housing trust's decision to seek an order for possession against her. It was claimed by the tenant that because of the functional nature of registered social landlords, the trust was a "public body" within the meaning of the Human Rights Act 1998. Consequently, the trust was in breach of legitimate expectation by failing to pursue all reasonable alternatives before resorting to possession. It was held by the court that the management and allocation of housing stock was a function of public nature and played a role in implementing government policy, the trust was therefore to be regarded as a public authority.
The verdict in this case seemingly paved the way for social landlord decisions to be judiciously assessed in the future and would be subject to the requirements of public law. It may now be taken one step further in the Circle 33 case.
Until the review is complete into the reasonableness of the housing association's decision, it is difficult to be certain as to what the effect will be on social landlords in the future. However, the whole sector will be awaiting the decision of the High Court with great interest as the case has the potential to open a new avenue of judicial intervention in social landlord's decisions.