This was a renewed application for permission to appeal to the Court of Appeal on a second (or perhaps first- see below) appeal from the granting of a possession order. The ground of appeal was that the appellant tenant had a defence of proportionality which had not been considered by the District Judge and not considered adequately by the Circuit Judge in dismissing the first appeal.

Mr H had a starter tenancy (or AST) from West Kent Housing Association, an RSL/PRPSH. In January 2010, the RSL had a meeting, described as a re-hearing – at which it was decided not to extend or renew the tenancy, but instead serve notice. This was in the context of a complaint by a neighbour about ‘an act’ by Mr H that she saw through her door. The meeting notes suggested that it was difficult for the RSL review panel to reach a decision about what had happened, but on the balance of probability, they went with the neighbour. Mr H had and continues to deny the event occurred.

Thus possession proceedings cane before the Dartford County Court. At first instance, which was before either Manchester City Council v Pinnock [2010] UKSC 45 or Hounslow London Borough Council v Powell [2011] UKSC 8 were handed down, the District Judge did not consider proportionality at all and a possession order was granted.

There was then an appeal to HHJ Simpkiss.

Mr H “is a young man of 21 years old. He is insulin dependent and he is now married and has a child. Because of his insulin dependence, which has been with him since birth, he is vulnerable and it is said that he has suffered certain cognitive and comprehension difficulties. The result of the possession proceedings will be that he will become homeless and will therefore have to apply to the local authority for housing on the basis that he is homeless, and an issue will then arise as to whether he has become intentionally homeless.”

This was raised before the Circuit Judge. There had been no public law challenge to the review decision-making process, but it was raised that the decision was flawed.

The Circuit Judge held that there was no prospect of a successful challenge to the review process. The only signficant points raised were that Mr H denied the allegations and that the police had not considered them proveable to the criminal standard. However, these were not the issues that the RSL faced.

On proportionality, the CJ acknowledge that Mr H was vulnerable.

He noted that allegations had been made about his conduct in fact on several grounds, indecent exposure, intimidation of a neighbour and affray, and he also noted that the appellant denied all these allegations. The judge then referred to the speech of Lord Hope [in Powell] in which Lord Hope held that in relation to proportionality there was a high threshold before it could be argued, and it had to be seriously arguable before it could be raised before the judge. Proportionality in this context means a proportionate means of achieving a legitimate aim, and the court had to recognise that the local authority was likely to be in a better position than a court to assess whether there were good management review reasons for seeking the order. Ordinarily the local authority did not have to explain or justify its reasons for seeking a possession order to which it was entitled.

The CJ futher noted Lord Neuberger’s statement in Pinnock that it would only be in the exceptional case that Art 8 proportionality would be even arguable. Further, the local authority (here RSL) should be assumed to be acting in accordance with its duties.

The judge held that it was not necessary for the court to investigate whether the allegations relied on were correct. There had to be something put forward on behalf of the defendant to raise issues as to whether the decision to take possession was one which could stand and was lawful. In the present case there was a disagreement about the internal appeal process, but at the end of the day the judge was satisfied that, even though the events had occurred earlier in the tenancy, they were material which the local authority could take into account. There was an internal procedure and that procedure was followed.

There were no serious arguments to be determined before making a possession order and this was not an exceptional case. He dismissed the appeal.

Permission to appeal on the papers was denied. On renewed permission to appeal, Arden LJ accepted that arguably this should be treated as a first appeal, the DJ having reached a decision before the relevant judgments in Pinnock and Powell, so that the CJ’s decision was the first on proportionality.

Mr H submitted that this case was analogous to that of Powell in Powell v Hounslow. Ms Powell was facing possession from temporary accommodation due to rent arrears, apparently due to issues with or failure to make housing benefit claims. She was given permanent accommodation before the Supreme Court hearing, but Lord Hope stated that, if there had been a live issue it would “have been preferable for her to be given an opportunity for the proportionality of the order to be considered in the light of her personal circumstances”. If evicted Ms Powell would have been homeless and entitled to make a homeless application. There would have been a duty because of her children [For some reason, intentional homelessness was not raised by counsel for Mr H, or at least it is not referred to by Arden LJ]. Mr H would be similarly vulnerable and in priority need but would be found intentionally homeless if evicted.

Arden LJ found that the case was not particularly analogous to Powell. There had been a review in this case and, unlike this case, there was the potential solubility of Ms Powell’s rent arrears through HB. Further, the landlord in this case was not a local authority with a prospective Part VII duty.

Further, the Court must star from the postion that the landlord had fulfilled its duties when it concluded that the evidence of the neighbour was to be preferred and that it had to take into account its duties to other tenants.

The CJ had considered proportionality, but his decision should be considered on the basis of a first appeal.

The decision at the appeal hearing did not seem to me to consider Mr Haycock’s conduct since the incident complained of or his vulnerability and allied personal circumstances. It must be arguable whether a registered social landlord is to be treated as in a different position from a housing authority under a housing duty. Therefore those issues seem to me one which can properly be considered as at the second stage. In other words it seems to me, in the particular circumstances of this case, that it is just about arguable that the proportionality of the making of a possession order should have been considered by the judge because there were factors which had not been taken into account, namely whether his conduct since the start of the tenancy had been of a different order and the question of whether given that he would be likely to be homeless and might be intentionally homeless as a result of the finding on disputed allegations.

Permission reluctantly given.

Comment
The ‘interim’ decision to effectively treat this a first appeal, given the timing of Pinnock etc. is interesting, but surely now of limited applicability.

Still, this one will be worth watching. Partly because the landlord is an RSL and it wil be interesting to see how the Court of Appeal approach housing management in an RSL rather than a local authority, prima facie. Also because – as should be clear from the passages cited above (and there were more) – both the CJ and Arden LJ seem to get themselves into a terrible tangle over whether the fact that a landlord body might have a Part VII housing duty would make any difference to a proportionality defence. I can’t see why it would or indeed should, but this may be unfair on the basis of what was clearly an ex tempore judgment.

As to the defence, it is hard to say on the brief basis of this permission judgment.

Certainly it would have been stronger with a combined public law defence to the decision to seek possession – and this appears to have been confused by Arden LJ and perhaps the CJ with a challenge to the review procedure on standard public law grounds (flawed, considering irrelevant info or not considering relevant info, irrationality etc.).

From this brief permission decision it is impossible to tell if a full gateway b challenge was raised below (i.e. the decision to evict being one no reasonable person would consider justified in the circumstances, including Mr H’s personal circumstances). But as this appeal is now proceeding on proportionality alone, this is an all or nothing defence, as we noted in discussing Hounslow v Powell.et al

Steve Howlett, chief executive of Peabody Trust and chair of the G15, said: ‘The G15 will consider how we can support L&Q if it chooses to appeal.’

When asked if this meant contributing to a possible ‘appeal fund’, Mr Howlett replied: ‘Yes – that is something that has previously been discussed.’

Given the ludicrous position that the LSC adopted on funding the Court of Appeal case for Ms Weaver, one would hope that this bloc of RSLs would make it abundantly clear that this is a ‘broader public relevance’ case par excellence and funding will follow.

It will be remembered that Mrs Weaver was a tenant of L&Q.  L&Q sought to evict her, relying on Ground 8.  She resisted this, claiming that she had a legitimate expectation that they would use Grounds 10 or 11 first and that the eviction engaged Article 8 of the European Convention of Human Rights.  The High Court rejected any suggestion of a legitimate expectation.  Because of the way that it was advanced the Article 8 claim fell as well, but the Divisional Court went on to decide that L&Q was a hybrid public authority for the purposes of the HRA and it was amenable to judicial review.  The Divisional Court did this through an Order, so that L&Q could appeal this finding.  There is a palpable sense of irritation in the Court of Appeal with the way that this litigation has panned out; see Elias LJ at [6], Lord Collins at [87]-[91] and Rix LJ at [104]-[115].  There was also some criticism of the Divisional Court for focusing on the wrong question; see [53]-[57] and [114].

Let’s start with Elias LJ’s lead judgment, then Lord Collin’s concurring judgment, before considering Rix LJ’s dissent.

Social Housing

Elias LJ first outlined the role of RSLs in social housing.  In brief:

• It is Government policy to provide social housing [8].
• RSLs were regulated by the Housing Corporation [9].
• RSLs are subject to detailed housing management guidance, which is approved by the Secretary of State [10].
• Ss 8-10 of the Housing Act 1996 impose further regulation on RSLs [11].
• RSLs are subsidised by public funds through Housing Corpn grants [12].
• They have an important role in assisting LAs to carry out their statutory housing policies; this is not simply through choice, but through legislation [13].
• Many LA properties are being transferred to RSLs [14].
• Certain statutory powers are bestowed on RSLs, eg in relation to anti-social behaviour [16].

He then went on to some identifying features of L&Q, such as its charitable status, the origins of some of its housing stock, and the source of some of its funding.

Human Rights Act

The crucial battleground is s. 6 of the HRA.  The relevant subsections are:

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
…
(3) In this section “public authority” includes—
…
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
…
(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.

Elias LJ then moved on at [30]-[40] to the existing case law on the HRA: Aston Cantlow v Wallbank [2003] UKHL 37 and YL v Birmingham City Council [2007] UKHL 27.  He also noted Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48.  At [41] Elias LJ concluded his journey through the authorities:

I would draw these tentative propositions from this analysis.  First, the source of the power will be a relevant factor in determining whether the act in question is in the nature of a private act or not.  Second, that will not be decisive, however, since the nature of the activities in issue in the proceedings is also important.  This leads on to the third and related proposition, which is that the character of an act is likely to take its colour from the character of the function of which it forms part.

Elias LJ characterised the essential question as “whether the act of terminating the tenancy is a private act”, but this must be done by considering the “context in which the act occurs; the act cannot be considered in isolation” [66].  This, and the third of Elias LJ’s propositions above must be right.

At [68]-[72] Elias LJ finds that L&Q’s function of allocating and managing housing is of a public nature.  There is significant reliance on public funding; L&Q operates in very close harmony with local government, although it does not directly take its place; the provision of subsidised housing, as opposed to the provision of housing itself, is a function which can properly be described as governmental; L&Q acts in the public interest and has charitable objectives; and it is subject to intrusive regulation on allocation and management, not just regulation designed to ensure transparency or proper standards of performance.

This still leaves the central question of whether the termination, involving the exercise of a contractual power, is solely a private act.  At [73] Elias LJ acknowledges that there are observations in YL and Aston Cantlow that would appear to suggest it was.  However, at [76] he says:

In my judgment, the act of termination is so bound up with the provision of social housing that once the latter is seen, in the context of this particular body, as the exercise of a public function, then acts which are necessarily involved in the regulation of the function must also be public acts.  The grant of a tenancy and its subsequent termination are part and parcel of determining who should be allowed to take advantage of this public benefit.  This is not an act which is purely incidental or supplementary to the principal function, such as contracting out the cleaning of the windows of the Trust’s properties. That could readily be seen as a private function of a kind carried on by both public and private bodies.  No doubt the termination of such a contract would be a private act (unless the body were a core public authority.)

At [80] he moves on to consider whether HRA protection should extend to all L&Q tenants in social housing, or only those in properties acquired as a result of  state grants.  Elias LJ thinks that it should be the former: “The effect of the grant is not merely to assist the Trust (and other RSLs similarly placed) in being able to provide low cost housing to the tenants in the  properties acquired by the grant; it necessarily has a wider impact, and bears upon its ability to provide social housing generally.”  However, the HRA will not extend to those tenants who are not in social housing, but are paying market rents [81]-[82].  Elias LJ says that this is not the equivalent of the possible unattractive consequences of YL; “it merely mirrors the current distinction between those housed in local authority accommodation, who do have human rights protection with respect to evictions, and those housed in the private sector who do not”.

Elias LJ holds, as the Divisional Court did, that this all means that L&Q is subject to JR, as L&Q did not seek to argue otherwise.

Finally, and crucially, he points out that this judgment does not mean that every RSL will be in the same position as L&Q:

For example, a potentially important difference is that apparently some RSLs have not received any public subsidy at all, and arguably – and I put it no higher than that – their position could be different. ([84])

Support

Lord Collins broadly agrees with Elias LJ.  He points out that the added protection may not be worth all that much to tenants in the light of Kay.  At [100] Lord Collins goes further than Elias LJ and says that “It is not easy to envisage circumstances where an act could be of a public nature where it is not done in pursuance … of public functions”.

Dissent

Where it all gets really interesting is Rix LJ’s dissenting view.  At [116] he turns to consider the effects of the jurisprudence of the European Court of Human Rights.  He records that the asked Counsel what the Strasbourg court had said about non-governmental providers of social housing, but was told that there were no relevant cases.

Rix LJ goes on to consider R v Servite Houses ex p Goldsmith (2001) 33 HLR 35 and Poplar in a bit more detail, before providing his own analysis of Aston Cantlow and YL.  He then noted (at [146]) that in R (Ahmad) v Newham [2009] UKHL 12 Baroness Hale emphasised that the provision of housing is not a government function.

At [147] he then concludes that he did not consider L&Q’s “decision to terminate Mrs Weaver’s tenancy by seeking possession from the court on mandatory ground 8 justified by her non-payment of rent is properly to be categorised as the exercise of a function of a public nature rather than a private act arising out of contract.”  Rix LJ relied on ten factors:

1. Strasbourg jurisprudence did not support the contrary conclusion [148].
2. He can find no support in Servite, Aston Cantlow, Poplar or YL [149].
3. Arguments in the instant case had been inappropriately influenced by the structure of the dispute in YL.  There had been too much focus on s.6(3)(b) and not enough on s.6(5) [150].
4. He is distinctly unhappy about viewing “management and allocation” as an all-embracing public function, that includes termination – “the acceptance that management of social housing is essentially a single integrated function of a public nature is most unlikely to be correct” [151].
5. It does not follow that termination is automatically a public function simply because allocation is [152].
6. There is nothing special about the regulation that covers social housing; large parts of commercial life are covered by regulation [154].
7. There is nothing about the nature of L&Q, or the typical RSL, to suggest that the everyday administration of tenancy agreements is a function of a public nature.  L&Q is a charity, with independent corporate status, an independent board, and owned by private shareholders.  Indeed, ”the world of charity is essentially private” [155].
8. The main sources of capital finances are private lenders and house sales [156].  While public subsidy is an important factor in the overall assessment, such matters are relative.  Public finance is an element in the equation, but Rix LJ would be sceptical about allowing it to play a dominant role in the assessment [157].
9. In YL, Lord Neuberger had said that the competing views about policy made it a neutral factor.  Rix LJ would add to Lord Neuberger’s policy arguments for not viewing a function as one of a public nature a further argument; namely that the experience and efficiency of the private sector may be to the public benefit [158].
10. Public welfare concerns for those in need of social housing can be addressed in a variety of ways; it is unnecessary to artificially classify private contractual decisions as being of a public nature to address these public welfare concerns [159].

Rix LJ takes issue with the Divisional Court’s declaration for not being clear that it is L&Q’s social housing that is at issue [151].  To the extent that L&Q has some non-social housing then this is a fair criticism, but it seems clear that the reference in the declaration should be taken to be a reference to the management and allocation of social housing stock.  It is not clear that the existence of market rent properties owned by L&Q was even put to the Divisional Court.  If it wasn’t then the word “social” would have been superfluous anyway.  Rix LJ suggests later on in the same paragraph that some 36% of L&Q’s properties are outside of the sphere of social housing, but it seems to me that this conclusion does not necessarily follow from the facts.  Just because in a given year some 64% of L&Q’s new lettings were the result of LA nominations [24] does not, for me, mean that all of the remaining 36% are necessarily not social housing.

Preliminary Comments

There is a lot to deal with here and what follows is simply my initial thoughts, so all comments welcome.

It’s probably clear that I prefer the reasoning of the majority, but I still think that there is a lot of value in Rix LJ’s dissenting judgment.  I suspect that his could be an important view as this debate rolls on.

As was suggested in the write-up of the original judgment this case still leaves room for individual RSLs to argue that they are in some way distinct from L&Q and don’t therefore quite cross the threshold to be considered as carrying out public functions.  That will presumably be argued a lot in the ensuring JR and HRA claims against RSLs.

Elias LJ’s conclusion at [80] that this should cover all of L&Q’s social tenants has to be right.  To hold otherwise would draw an unnatural, and difficult to identify, distinction.

There is, understandably, a lot of reliance on YL.  That’s as it should be.  Just because I think that YL was wrongly decided, doesn’t mean that precedent should be abandoned.  What surprises me is that there is no mention of the fact that the Health and Social Care Act 2008 has reversed the result of YL.  Clearly s. 145 of that Act does not change the test in respect of s. 6 HRA; that work appears to be on the back-burner for the time being, although a consultation is still rumoured before the end of the year.  But what, at least in my opinion, s. 145 does do is demonstrate that the executive and the legislature have shown that the result that the House of Lords came to in applying the facts of YL to the test was wrong.  Public policy dictates that providing accommodation, together with care, in a care home is a function of a public nature.  Legislation now explicitly says that because the courts failed to realise it.

I’ve said above that I agree with Elias LJ at [41] and [66], but to the extent that Elias LJ and Lord Collins differ I prefer Lord Collins’ view – see [100].

I’m also not sure about Rix LJ’s point on charitable status in [155].   I merely pose as a thought whether the presence of the Charity Commission as a regulator should influence this.  I’m not sure of the answer, but the Charity Commission was not considered in YL or Heather, other than in a fleeting reference in Heather as to whether the proceedings required their permission.

Lying beneath all of this is still seems to be the same arguments of public policy that have exercised the courts when considering s. 6 right from the start.  That perhaps is a debate for another day.

Anyway, I would imagine that this will be making an appearance in the new Supreme Court before long – doesn’t the Guildhall look nice with the boards taken down?

This was the Court of Appeal hearing of L&Q’s appeal of the High Court finding that it was a public authority in its housing function, subject to judicial review and the HRA.

Result – L&Q lost. They are indeed a public authority in their housing function.

But there is a lot in the detail – our full report to come.

So… House of Lords anyone?

[Edit. OK, one the one hand, the NL team are fighting over who gets to write up the detailed post, and on the other, we're struggling with who has time to do it soonest. Maybe Friday evening, maybe Saturday, but it is coming, we promise.]

So, Weaver v London Quadrant Housing Trust [2009] EWCA Civ 235.

As all will recall, L&Q were declared to be a public body for the purposes of the Human Rights Act (and also judicial review) in the JR hearing, while Ms Weaver’s challenge to the Notice seeking Possession under Ground 8 and consequent possession order was dismissed. L&Q specifically requested that the finding that it was a public body be in the form of a declaration so that it could appeal, and appeal it did. The Equality and Human Rights Commission are seeking to intervene in the appeal, and had, at this point only permission to make written representations.

Ms Weaver was legally aided. On the appeal, the Legal Services Commission, in its infinite wisdom, decided that it would only fund Ms Weaver on condition that it would not be liable for L&Qs costs, of L&Q won the appeal. (Why on earth the LSC reached this conclusion when this would appear to be the very archetype of a case that has broader public interest and relevance is beyond me, but then much of the LSC’s decision making is beyond me).

If Ms Weaver was to proceed, she had to apply for a PCO to the effect that she (and the LSC) would not be liable for L&Q’s costs if they won. L&Q, for reasons best known to themselves, opposed the application.

It should be noted – particularly for future use – that it is open to the court when granting leave to appeal to set costs conditions, including, for example, that the costs of the appeal be wholly borne by the appellant, CPR 52.37. That did not happen in this case. No costs conditions were set, apparently because everyone assumed that the LSC would fund such a major case.

Now, we enter a strange parallel world [wobbly screen effect] of L&Qs grounds of opposition, a stance described by Elias LJ as possessed of ‘a considerable air of unreality’ [para 7] and by Toulson LJ as causing him to be ‘puzzled by what the Trust has hoped to achieve’ [para 17].

L&Q maintained that the application did not meet the criterea for a PCO as set out in R(Corner House Research) v SSTI [2005] 1 WLR 2600 at para 74.

To begin with, those rules applied to applicant (or appellants), whereas Ms Weaver was the respondent in this appeal. The Court of Appeal noted that this was an unusual case, where the Corner House principles would not precisely apply, but this was common law jurisdiction and open to development. There was no doubt that in principle an application for a PCO was open to a respondent.

In his skeleton, but not at the hearing, Christopher Baker for L&Q argued that if one had regard to the financial resources of the applicant and respondent, it was not necessarily fair and just to make the PCO, because L&Q was a charitable and non-profit making body. The Court noted that it was ‘sensible’ that L&Q chose not to pursue that argument, give the evident disparity in financial resources.

L&Q then contended that Ms Weaver had a private interest in the outcome of the case, while Corner House restricts a PCO to those with no private interest. Pressed on what the private interest was, L&Q asserted that Ms Weaver would have the benefit of public law protection as an assured tenant. The Court of Appeal was not prepared to accept that this qualified as a private interest. In Goodson v HM Coroner for Beds & Luton [2005] EWCA Civ 1172, the Court accepted that a private interest that will apply to the population or a section of the population as a whole would qualify, and that was the case here. The appeal was being conducted in the public interest at the behest of the trust, not to assert the respondent’s private interest. The possession order would stand anyway.

In response to the Court’s concern that not making a PCO would result in the respondent have to take no further part in the case, and be acting reasonably in doing so, L&Q submitted that it was ‘not crucial that the applicant [Ms Weaver] be represented’ [para 14] as the divisional Court judgment set out the contending arguments in some detail. The Court of Appeal kindly avoided the obvious rejoinder – that in that case L&Q didn’t require representation either – and instead dismissed this out of hand. It was ‘important that this case be properly argued before the court’ and it is not an answer to say it could get by with the lower judgment [para 14]. In addition per Elias LJ:

There can be no doubt that this case is raising an issue of some public importance — of great importance, in particular, to the Trust. It is vital that there is proper representation for both sides before the court. If the claimant does not obtain the PCO that they seek, with the result that they are not represented before the court, then either the Equality and Human Rights Commission would have to take the burden of providing the necessary representation or the court would have to appoint an amicus. I have little doubt that if it had been appreciated when leave was granted that the court might have to appoint an amicus, permission would not have been granted on that basis. In any event it would now involve a delay to take the step. Perhaps the most important point is that, if either of those two bodies, the amicus or the intervenor, were to be running the arguments against the Trust in the appeal, then the Trust would, in any event, not be able to recover any costs against either of them [para 7]

Toulson LJ adds that:

The Trust might consider itself fortunate that it was not made subject to a condition requiring it to pay both sides’ costs of the appeal, since the appeal was being brought in order to establish a point of law of general importance to registered social landlords. [para 16]

Application for a PCO granted in terms that L&Q shall not recover any costs in the appeal against either the respondent or the LSC.

Is it just me, or is this not madness multiplied? – on the part of the LSC in the condition of its funding, certainly, and in then the extraordinary attempts by L&Q to oppose the application when, as the Court of Appeal points out, it was not going to gain anything, let alone the costs, in doing so. In fact, had L&Q been successful, thus requiring an amicus to be appointed, one imagines L&Q might well have faced a rather hostile court from the get go in the appeal hearing.

We have been asked by some researchers, who are investigating housing association rent arrears management as well as their use of Ground 8, if readers would get in touch with them if they have experience of RSLs using Ground 8 and in what circumstances it is used.  The independent researchers have been asked by the Housing Corporation/Tenants Services Authority to find out particularly about the use of Ground 8 by RSLs as opposed to the use of other grounds for possession, as well as other rent arrears management strategies which might be adopted by RSLs.  They would be particularly interested in any anecdotal evidence, which would assist them in drafting a national questionnaire to RSLs and follow-up detailed case study work with RSLs.

They can be contacted c/o d.s.cowan@bris.ac.uk  They have promised to let us have a free copy of the final report in return for this plug, which could well make interesting reading in view of existing guidance on the (non) use of ground 8.

21 Press House, Press Road LON/00AE/LSC/2007/0292 [pdf], an LVT decision. The landlord, Stadium Housing Association, were facing an application over hefty service charges made on an shorthold assured tenancy which was Part VII temporary accommodation for Brent Council.

How did Stadium Housing decide to defend the case? By attacking the integrity of the Tribunal. Stadium pointed out that the chair, Nik Nicol, was a member of the Housing Law Practioner’s Association (yes, Hlpa!). Stadium, via their counsel Mr Grundy, alleged that:

the purpose of Hlpa was to promote the interests of tenants [...] and it was as plain as a pikestaff that an “ordinary member of the public” would perceive members of Hlpa as biased in favour of tenants.

Nik Nicol pointed out that he was not just a member, but had been on the executive of Hlpa for 9 years and helped to write the constitution. In addition, another member of the sitting Tribunal, Mel Cairns, was also a founder member of Hlpa and is currently on the committee.

Stadium, it was pointed out, had utterly failed to understand the difference between ‘promoting the rights of tenants’ (Hlpa aim) and promoting the interests of tenants. Finding in favour if a tenant without basis in evidence and law would not be promoting the rights of the tenant. In addition Hlpa’s code of conduct commits its members to professional behaviour. There could be little that was more unprofessional than judicial bias, which was what was being suggested.

Hlpa’s stated objectives were notably similar to those of most RSLs and would not look out of place on Stadium’s website, so it would be hard to see how a member of the public could perceive bias.

Mr Grundy’s submissions would mean that no member of Hlpa could ever hold judicial position, simply by that membership and that would make a mockery of the rigorous selection process. There was no bias or appearance of bias.

Just why Stadium might have taken this utterly ridiculous approach is clear in the rest of the Judgment. They were levying a walloping £129.72 per week service charge. However:

• It was improperly apportioned under the tenancy agreement
• Services had been changed without notification or consultation
• Stadium could provide no breakdown of the charge
• Charges weren’t audited, despite Housing Corp requirements
• The charge was very high in comparison to others, for no reason, but it was usually paid by Housing Benefit, so nobody cared (except the applicant, who was working).
• The contract was not individually negotiated so the Unfair Terms in Consumer Contract Regulations were engaged
• The applicant was being asked to pay a charge for things that “no assured shorthold tenant in the private sector would even think of paying, even if the landlord were minded to try to impose it”.
• On reasonableness of other charges, there was simply no evidence provided of the actual costs incurred by the respondent. The Tribunal wasn’t prepared to guesstimate on no evidence.

The result, service charges of £42.75 per week payable, a drop of £87 per week. This amount to be retrospective. No subsequent changes to the service charge made by the respondent were valid.

Oh dear, oh dear. Probably best not to impugn the professionalism of the Tribunal when it is your utter lack of professionalism that is about to come to light.

This challenge to service charges for temporary accommodation under Part VII is worth bearing in mind when, for example a client is facing a ‘rent arrears’ possession from temporary accommodation, if a service charge component is levied, at least. Stadium are far from alone in their cack-handed handling of the charge.

Thanks to Ethan at ‘That Snail..’ for passing on unconfirmed news (aka a rumour) that London & Quadrant have decided not to appeal R(Weaver) v L&Q, which, lest anyone forget, was the landmark decision on RSLs being public bodies in their housing function for the purposes of judicial review.

If true, this is a surprise, to put it mildly. Does anyone have confirmation?

there was ‘no basis’ to the belief that giving associations a duty to act in accordance with ECHR rights would change their status from private to public ‘for any purpose other than the applicability of the Human Rights Act’.

So there. But while this is not a bad idea at all, at least as far as it might help with the most egregious forms of RSL behaviour, it is unlikely to make it into the Housing bill at this stage (even though it is being frantically amended).