Judicial Review on the Cards for RSLs as London & Quadrant appeal fails

Article

06 November, 2009

The last act may have been played out in the case of London & Quadrant Housing Trust v R (on the application of Weaver) & Equality & Human Rights Commission [2009] EWCA Civ 587. The Supreme Court of England and Wales (formerly the judicial arm of the House of Lords) has refused L&Q's application for permission to appeal against the landmark ruling of the Court of Appeal in June 2009.

This refusal brings the case to an end (a referral to the European Court of Human Rights is hardly likely!) and as such means that certain decisions and acts of Registered Social Landlords (RSLs) can be judicially reviewed and challenged through the courts. There are a number of cases which have been stayed, pending this ruling, particularly concerning whether a landlord's decision to withdraw wardens from sheltered schemes could be judicially reviewed.

There may also now be possible defences which could be made use of by tenants in "routine" possession claims on both public law grounds and on the basis of a breach of human rights.

The Court of Appeal's Decision

In June 2009, the Court of Appeal held that London & Quadrant Housing Trust acted as a public body when it served a Notice Seeking Possession upon a tenant relying upon the mandatory ground for possession concerning rent arrears. Therefore it was amenable to the procedure of judicial review.

Weaver had argued that most RSLs are funded in order to fulfil an important function of government and further that the decision on who should be allocated the benefit of social housing, the terms on which a tenancy is offered and the decision to remove a tenant are all related to the exercise of rights which are private in form, but public in substance. In reply, L&Q submitted that no-one had a "right" to a house and that local housing authorities are under no general duty to provide accommodation. The Trust also said that in order to constitute a public body, it was necessary for the state to have control over the exercise of the organisation's powers, but that in this instance, there was no such control as the Trust entered into its own contracts and controlled its own affairs.

The Court of Appeal was of the view that the act of terminating a tenancy was so inextricably linked to the provision of social housing that once the latter had been thought of as being public, the acts involved in the regulation of these functions should also be deemed as public in nature. Therefore, the act of terminating the tenancy of Mrs Weaver did not constitute an act of a purely private nature and was in principle subject to human rights considerations. Accordingly, the appeal brought by the Trust was dismissed.

Summary

The refusal of permission to appeal by the Supreme Court is of significant importance for the future operations of RSLs. Certain decisions made by them and their employees can be scrutinised by members of the judiciary in the same way as for local authorities.

For more information and assistance on these issues, please contact the Housing Litigation Department at Forbes Solicitors on 01772 220200 or contact Stuart Penswick by email.

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