Comments on: RSL meet HRA, HRA meet RSL

By: Frank Jones

Frank Jones — Sat, 19 Feb 2011 03:59:13 +0000

“The question in this respect must surely be, was this clandestine removal of residents’ human rights initself a denial of human rights? Or, to put it another way, what process is there in law. or commercial enterprise to remove the human rights of people who already have them ?

One answer would be charity law as it is applied to almshouses.

By: NL

NL — Wed, 23 Dec 2009 23:00:34 +0000

A public law remedy in the form of a declaration, rather oddly, was granted in Garbet but without the court actually deciding that it was a public law issue. The Weaver point simply wasn’t decided either way, as the Court found that the specific claim – under the tenancy agreement – was properly a private law claim.

In short Garbet was a mess, and frankly casts no light whatsoever on this issue. I’m afraid your argument doesn’t get much or indeed any support from that case.

By: JH

JH — Wed, 23 Dec 2009 16:38:18 +0000

One of the reasons I raised the above issue was that for me “If” is a huge question in Rix LJ’s dissenting view. If allocation is of public nature etc.

LAs nominate and have nomination agreements with private landlords too. Are they therefore public authorities? Clearly they are not.

Also both RSLs and private landlords can refuse the nomination. Hence there is a major critical distinction between nomination/allocation and sign-up and the granting of tenure does not automatically follow from nomination – it is a distinct process (and function).

The fact that private landlords can grant tenancies after nomination makes the act of nomination arguablly not a public function in my view. I agree with you that nomination (the supposed public function that in my view Rix dissented to in [152]) only creates a prospective tenant but not a prospective social tenant as that allocation can be to a private landlord.

How it then follows that housing management in all its entirety is a public function is a huge step that I dont think is sustainable.

Moreover, if all RSLs housing management is a public function, how can the Garbet case (in which judgment was suspended until after Weaver) not concur with this view? If Garbet is bound by Weaver and Garbet didnt award a public remedy, then can it be said that RSLs housing management functions are public in nature?

It must be the case that the provision of a warden service has to be a core management function (resident or otherwise), so I disagree that housing management by RSLs is seen as a de facto public function.

By: dave

dave — Sun, 20 Dec 2009 10:52:27 +0000

There’s a useful piece in the most recent Journal of Housing Law which covers this issue about the meaning of housing management, drawing on some of the definitions used in practice. If memory serves me right, there is no accepted definition of housing managment; core functions are said to include allocation, rent collection and arrears management, but not termination. It’s a movable feast at any rate (and I’m thinking in particular about changing definitions historically as well as current practice, such as the Irwell Valley gold standard approach to housing management).

By: NL

NL — Sat, 19 Dec 2009 13:09:06 +0000

I think [152] actually makes my point – allocation in those circumstances is by the LA. Sign up by the RSL – i.e. entering into a contractural tenancy – is, on this view, distinct from allocation, which only gives rise to a ‘prospective’ tenant.

By: jh

jh — Sat, 19 Dec 2009 11:04:20 +0000

NL – I disagree and [152] clearly makes the point I was making in the distinction between sign up and termination.
“Moreover, in as much as it is suggested that because allocation is a function of a public nature, therefore termination is, I would respectfully disagree. Allocation arises under arrangements made between an RSL and a local authority, where the local authority makes use of such arrangements to fulfil their statutory duty to have an allocation policy. However, once an allocation has been made and a prospective tenant has been accepted by an RSL as its tenant, the tenant then enters into a contractual tenancy with the RSL, and their relationship thenceforward is governed, just like any tenant’s relationship with his or her landlord, by private law. That remains the case despite the relevance of regulation”

So the dissenting view did attempt to differentiate between sign-up and termination as public ‘functions’ and did say that IF sign-up was a public function then all that follows were private functions.

By: NL

NL — Fri, 18 Dec 2009 18:01:43 +0000

I did use inverted commas…

But I’d say allocation, grant of tenancy, performance of covenants (by landlord and tenant), dealing with breach and termination would be pretty much core. Coffee mornings and flower judging, probably not. But if the Supreme Court says flower competitions are in, I’m not going to argue.

By: NL

NL — Fri, 18 Dec 2009 17:52:56 +0000

JH, Weaver, either in the majority or the minority, did not find that the public function was restricted to sign-ups under LA allocation/nomination. The reverse is true, both the majority and arguably Lord Rix thought that to distinguish between tenants of an RSL who were i) transferred from an LA under a stock transfer, ii) nominated to a tenancy via an LA allocation, iii) allocated a tenancy by the RSL directly with no LA involvement was not feasible. The only distinction admitted was with ‘non social’ full market rent AST tenancies with the RSL. This was why I was confused by your distinction. And I think you don’t go far enough. Allocation/nomination by an LA as a public duty, sure, but once you have admitted grant of tenancy by an RSL as a public function, the rest potentially follows – provision of the tenancy as public act arguably includes its ongoing management and its termination. So LA allocation/nomination as a public act, fine, but if an RSL is not a public authority in the exercise of its housing function, why should public function extend to the grant of tenancy which is, arguably, a mechanical response to the key decision/act of the LA to nominate?

But then, of course, RSL’s own social tenancy allocation policies are tightly regulated, as are many of the other management functions (Housing Corp as was, now TSA), including the kind of tenancy that can be granted, any introductory period, rent increases, and the grounds on which termination can be achieved and the extra statutory steps required – few of which apply to private tenancies, which is where Rix LJ at 154 is arguably in error.

As to ‘what the hell has a lawful eviction decision by an RSL got to do with the Council’, you are rather putting the cart before the horse. The issue in Weaver was not concerned solely or even primarily with whether the RSL was carrying out an activity on behalf of an LA. Ms Weaver was not an LA nominated tenant, as far as I know. The issue was whether, in the provision and management of social housing tout court, the RSL was carrying out a public function.

By: jh

jh — Fri, 18 Dec 2009 16:54:29 +0000

I would define core functions as rent collection, managing the tenancy conditions or arrears and esate management. Non-core functions would be such matters as best kept gardens (that is non-tenancy matters.)

Yes its a vague definition but adequate one for sense of argument purposes.

My point above is that within the core functions sign-up of tenants has been judged in Weaver case to be public because that function is in furtherance of the RSLs ‘duty’ to help the LA with its mandatory duties. I go on to say that it is only at sign-up that the RSLs core housing management ‘duties’ coincide with actual LA legal duties.

Eviction – lawful eviction by RSL does not coincide with any mandatory duties on LAs and hence this is how i separate these core functions in terms of being potentially public (the majority view in Weaver) from the minority dissenting view that I contend is right in Rix LJs view at [151].

It is not a conceptual distinction but a factual one – in simple terms what the hell has a lawful eviction decision by a RSL got to do with the council – its effects will in homelessness terms but not the decision or function itself.

By: dave

dave — Fri, 18 Dec 2009 16:03:09 +0000

Just out of interest: what is a “core” housing management function? And how do you establish it as core? For some HAs, I suspect (especially if you watch those telly programmes), gardening competitions are core functions.