Local authority landlords will be familiar with the concept of human rights being relied upon in defences to possession proceedings. Until the recent Court of Appeal decision in London & Quadrant Housing Trust v R (on the application of Weaver) & Equality and Human Rights Commission [2009} EWCA Civ 587, registered social landlords (“RSLs”) were unexposed to such challenges as they were not considered to be public bodies and therefore not within the Human Rights Act 1998 (“the 1998 Act”).
However, the Weaver case opened up the possibility of human rights being taken into account in possession claims issued by RSLs.
It is Article 8 of the European Convention on Human Rights that we are principally concerned with here. That Article provides the right to respect for private and family life and prevents interference by a public authority with the exercise of the right, except such as is in accordance with the law and is necessary in a democratic society in the interests of national security; public safety or the economic well-being of the country; for the prevention of disorder or crime; for the protection of health or morals; or for the protection of the rights and freedoms of others.
Ms Weaver was an assured tenant of London & Quadrant Housing Trust (“L&Q”), an RSL, and had a long history of rent arrears. L&Q served a Notice of Seeking Possession and issued possession proceedings citing the mandatory Ground 8 of Schedule 2 to the Housing Act 1988.
Ms Weaver sought to defend those proceedings on the basis that she had a legitimate expectation that L&Q would not seek to rely on Ground 8. As the legitimate expectation doctrine applies only to public bodies, Ms Weaver had to establish that L&Q was engaging in ‘functions of a public nature’ so that the 1998 Act applied and human rights could be relied upon.
Although the Court of Appeal decided the appeal against Ms Weaver, crucially it found that L&C was exercising a public function in its housing, management and allocations functions, and was a hybrid public body. In arriving at its decision, the Court of Appeal found the following characteristics of importance:
1.L&Q was not an ordinary commercial or private business;
2.The actions taken by L&Q were for the benefit of the community;
3.RSLs are regulated by Government and work closely with public authorities, often assuming their responsibilities;
4.The Housing Corporation is a controlling and influencing agency for RSLs;
5.L&Q received a public subsidy on which it was reliant;
6.Some of L&Q’s housing stock was former local authority housing which had been transferred;
7.The relationship between L&Q and the local authority was more than purely commercial;
8.L&Q was a public authority and exercising a public function when seeking possession, even though serving a notice to terminate a tenancy was a private law act.
The Court of Appeal made clear that the issue of whether the landlord was a public body would need to be determined on the individual facts of each case. However, until the House of Lords appeal is heard, those RSLs - and there may be many - that are similar to L&Q could well find themselves viewed as public bodies, and be susceptible to human rights challenges and judicial review when exercising the public element of their functions. Private functions, which are purely so, are unlikely to be caught, hence purely commercial agreements with commercial bodies are unlikely to be affected, and each area of function is likely to be viewed in isolation.
If the House of Lords make similar findings, this arena will open up and RSLs will no doubt find themselves fighting increasing human rights or judicial review challenges.