First post-Weaver case to be heard by High Court

Article

08 June, 2010

In June 2010, the High Court will hear the first case to test the law after the decision of the Court of Appeal in R (on the application of Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587. The Weaver decision had stated that housing associations could be classified as public bodies when dealing with matters concerning the allocation and termination of social tenancies.

The decision in Weaver

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. Therefore, it was amenable to the procedure of judicial review.

Weaver had argued that most Registered Social Landlords are funded in order to fulfil an important function of government and 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. The Trust 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 none as the Trust entered into its own contracts and controlled its own affairs.

The court 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 private nature and was in principle subject to human rights considerations. Accordingly, the appeal brought by the Trust was dismissed.

The Test Case

The 'test case' concerns a tenant of Catalyst Communities Housing Association by the name of Corinne Hart. It has been reported by Inside Housing that Catalyst began possession proceedings against the tenant after complaints were received of nuisance and damage to the property. This was denied by the tenant and her lawyers will contend that the housing association is a public body and has breached Article 6 of the Human Rights Act 1998. Catalyst is said to be forwarding an argument that housing associations doe not meet the definition of a public body.

Summary

The High Court's decision could conceivably have a considerable impact upon the workings of housing associations. If the Weaver decision is affirmed in the test case, it will confirm the position that social landlords are susceptible to judicial review. In light of this, it is advised that housing associations are aware of the judgment in this case when it is delivered and of the effect it may have in the future.

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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