07/03/2008

Housing Associations and public function to be tested?

[Edit 30 June 08. The judgment in the following case is now out. For a detailed comment, see this post.]

According to Inside Housing, London & Quadrant are fighting an application for Judicial Review in Susan Weaver v London & Quadrant Housing Trust. It appears that the applicant is making the full-on challenge – that Housing Associations are public bodies – as a defence to a ground 8 possession.

This will be very interesting. Clearly, housing associations can be capable of being public bodies where fulfilling the function of a public body. But the circumstances in which that might be said to be the case have been highly arguable, and in any case appeared to be quite severely limited by the implications of the care home decision in YL v Birmingham in the House of Lords. What isn’t clear from the Inside Housing note is the circumstances in this case. Is it transferred local authority housing stock, for example?

I would have thought that YL v Birmingham would have put a strict limit on any attempt to have housing associations be taken as public bodies tout court, so more details would be good.

Needless to say, L&Q are apparently aiming to fight this tooth and claw. As one of the largest housing associations to use ground 8 in possession claims frequently, I’m not surprised that they are. The reasons for bringing ground 8 possession claims would all too often be susceptible to judicial review.

Much more, of course, when this one reaches a public result.

Inside Housing’s news feed is currently broken on my feeds page and the feed fails to validate, all because of the Q in L&Q. I smell a conspiracy…

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

38 Comments

  1. the chief

    I think this is another reason why the YL decision was unhelpful as it simply isn’t clear how this will go down. In YL the HoL seemed to think that Poplar Housing v Donoghue placed too great a reliance on the historical connections between Tower Hamlets and Poplar, but I think that that’s quite an uncharitable reading of Poplar Housing. Regardless it’s hard to say that Poplar Housing has been definitively overruled with regards to housing associations, although you could certainly argue that if the exact same situation was to occur again then the Ct would need to go through the test to decide whether it was carrying out public functions or not. Presumably this is the point when everybody starts scratching their heads and asking “what exactly is the test? Hello, anybody?”

    Unless there is something special about her case I can’t see that Susan Weaver will win on this, purely for reasons of practicality. I mean, how long does it take just to go through permission stage at the moment? Doubt that the courts would allow the time for an eviction for rent arrears to be extended by that much, unless there is some really special factor. But then again, I’m not thinking very straight at the moment…

    Reply
  2. contact

    I don’t think delaying the eviction would be a problem. The Court can suspend the warrant as long as it likes, and probably would in the circumstances. Permission stage takes months to a year or so at the moment, though, unless accepted as urgent.

    Actually, without more detail, I’m not sure this is even a JR application, it could be an appeal of the possession order to the High Court (presumably via an appeal to a Circuit Judge) on the grounds that Ms Walker had a public law defence to the possession claim which was not heard at first instance. Hmm.

    “What is the test?” Yes, exactly what I was groping for.

    Reply
  3. J

    Apparently it is a JR on the lawfulness of L&Q having a policy which permits the use of Ground 8. It was argued at the end of Feb.

    Reply
  4. the chief

    Not that the cause list is necessarily always right, but the case was listed as ex parte. Would a possession order appeal be ex parte? I honestly don’t know.

    The fact that the warrant can be suspended is one of the reasons why I don’t think she will have much success. If it is JR and everybody could get their possession orders put off for at least a year just through a prompt JR application then the admin court probably simply couldn’t cope. All depends on the unknown facts I suppose.

    I hate “floodgate” arguments generally – they’re inevitably just gloomy doom-mongering predictions that aren’t born out by the facts – but I could see this being a decisive, if possibly unacknowledged, factor. I know that the PLP were trying to JR Jack Straw over delays in the admin court, but I don’t know what has happened about that since – I assume that it is slowly winding its way towards permission stage.

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  5. the chief

    Sorry J, I took so long to write my comment that I missed yours. Ok, if it’s the lawfulness of the policy rather than the decision making process that’s being challenged then that could be a bit more of a one off. I suppose that even if the policy is held to be lawful, but a public function is involved then it would still be possible for later evictees(?) to apply for JR based on standard decision making grounds. Possibly.

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  6. contact

    Thanks, J. I was simply too lazy last night to look it up, and today I have been firefighting a non-functional blog and its aftermath, so had other things on my mind. Sorry if things still seem a bit odd here.

    Right, JR on the lawfulness of a Ground 8 policy it is then. The big one, confronting both HA as public body and Ground 8 in one go. Was it the permission hearing at the end of Feb, or substantive hearing, do you know?

    Chief, agreed that it wouldn’t rule out a later challenge on decision making process, but the nature of ground 8 is such that the two would be hard to separate. The argument for both is that the decision has been made to seek possession order(s) that avoid both the Court’s consideration of reasonableness and consideration of the landlord’s following the rent arrears pre-action protocol. In social housing rent arrears cases, in what circumstances would it be reasonable to avoid the Court’s consideration? One win on ground 8, whether on decision or policy, would make ground 8 virtually impossible for RSLs to use. The Govt Guidance is not to use it, anyway, but this is not binding. But, against the policy argument, L&Q can’t even argue floodgates.

    A Ground 8 warrant can’t be suspended by the County Court (I wasn’t thinking straight) – it’s a mandatory possession order – but I doubt that L&Q would apply for a warrant while a JR application was underway. It would positively invite an interim order from the High Court.

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  7. J

    The hearing went for a day and a half, so I presume it was the substantive hearing.

    For my part, I can’t see how one can challenge the lawfulness of a policy which permits the use of Ground 8, particularly where the Housing Corp. doesn’t even come close to prohibiting the same.

    The “publc authority” point is much more interesting. The Housing Corp. has already accepted that an RSL is a public authority for the purposes of VAT and EU / public procurement law. I’ve never really understood why an RSL isn’t a public authority for the purposes of JR and why it somehow falls outwith the Datafin test.

    It will involve some fancy footwork though to find that an RSL is a public authority for the purposes of the HRA and will involve doing significant violence to the decision in YL.

    Lets see what happens!

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  8. contact

    It would be a pointless JR for the applicant if it only succeeded on the public authority point, although obviously of wider application.

    I agree that arguing a policy is unlawful could be difficult where it the ability to make ground 8 possession claims is enshrined in statute. However, the fact that L&Q have a policy to use ground 8 against tenants with over 8 weeks rent arrears would surely resemble fettering of discretion, No? With a fall back on unreasonable because i) fails to address specific circumstances and ii) fails to meet the ends of rent recovery.

    L&Q do use ground 8 without any adequate consideration of circumstances, and I have been told by an L&Q housing officer that they issue ground 8 claims just to get Housing Benefit kicked into action. This is appalling behaviour.

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  9. the chief

    J’s right, it was the hearing, in front of Richards LJ and Swift J.

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  10. Shanmuganathan, D

    JR against Housing Assn.
    The then ODPM has announced that HAs are Bodies Governed by Public Law. It shouldn’t be an issue on the question of maintainability (ref:Lord Woolf’s comment in POPLAR Harca case).
    Moreover, list of bodies provided in the EC Directives-after Cambridge University case at ECJ.

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  11. housinganger

    Very interesting blog, can’t believe I’ve only just stumbled upon it!
    I’ve always been a firm believer that RSL’s especially those who are in existence only because of stock transfers!

    I think I was only 2 months into this job when an RSL issued a sec 21 to an AST of theirs citing the client’s anti social behaviour as the reason for it. I got the case adjourned on the grounds that I believed the RSL was a public body and that a sec 21 wasn’t necessary or proportionate. The RSL were NOT happy but decided the tenant could stay there afterall just before the case was due to be heard. Amusingly they now put WE ARE NOT A PUBLIC BODY on all their particulars of claim as if that magically defends them.

    As for L & Q, well I had one client who’s IS was suspended and who’s HB was subsequently suspended. L & Q despite having notification from a CAB who was assisting the client that they were appealing both IS and HB decisions waited till week 9 and went for ground 8. Client was evicted and was then told a month later his appeal had been succesful. Goody for him. Sadly I wish I knew about him then and not till after all this had happened.

    Annoyingly he’s almost been discriminated against as he got his assured tenancy from a Councils waiting list when the council also had their own stock and gave secures. If he was a secure tenant and therefore no ground 8 then I’m sure he would still have a home and not be living in a tent.

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  12. housinganger

    Blast my second sentence should have read I’ve always been a firm believer that RSL’s especially those who are in existence only because of stock transfers are public bodies! Apologies, too much venting of anger!

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  13. Nearly Legal

    Shanmuganathan, D – the question is are RSLs exercising a public function that is susceptible to JR in their housing function? Given that this can cover everything from transferred local authority housing stock to something close to private assured shorthold tenancies, the answer is not straightforward. All that you mention helps the position, but is not conclusive, as far as I can see. I could be wrong.

    housinganger – welcome to Nearly Legal. I hope you found something of interest. The L&Q story is all too familiar. Expect a detailed comment when the judgment is handed down.

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  14. Richard Paris

    The Susan Weaver-v-L&Q case comes at an opportune time. The National Housing Federation are fighting a high profile campaign against Part 2 of the Housing & Regeneration Bill 2007/8 worrying that by subjecting RSLs to prescriptive regulation under OFTENANT they will become agencies of central government (& hence more likely than not public bodies).

    NBHA-v-Matthews in the Court of Appeal in December 2004 also involved L&Q-v-Morgan. From memory all assured tenants were facing Ground 8 claims being more than 8 weeks in arrears. Their advisors tried to get the cases adjourned at county court because some of the arrears were down to maladministration by HB. The advisors failed and the Court of Appeal would not interfer with the decsion below BUT were very critical of the failure of both RSLs to follow Housing Corporation guidance about issuing proceedings without trying to resolve any outstanding HB issues. Particularly so when considering using Ground 8. The Court of Appeal also felt the Housing Corporation guidance was too weak and not enforced.

    The guidance has now changed – Circular 02/07 – it has got weaker. BUT JR Housing Corporation should not be a problem in that Corporation is a public authority. Tangential arguments – statutory regulator failing to protect human rights (All public authorities must also ensure they do not ‘fail to act’ s.6(6) Human Rights Act 1998 – where it would be incompatible for them to take no action.)

    Cross over to s.2 and 3 Homelessness Act 2002 and preventive strategies of local authorities who must work in partnership with others (including RSLs)to try and prevent homelessness.

    Question which local authority is challenging L&Q (and other RSLs) in area that are using Ground 8 and undermining the local authority’s homelessness prevention strategy?

    Final point – Freedom of Information Act 2000 request to L&Q asking how many notices seeking possession issued in last 12 months citing Ground 8 and how many outright possession orders gained?

    Just because L&Q are big doesn’t mean they are right (Northern Rock or Bear Stearns anyone?)

    Reply
  15. Nearly Legal

    JRing the Housing Corp on the weakness of its guidance? Interesting idea, but given that even at its strongest, it is guidance and does not have binding effect, probably doomed – as who would have standing? Who would have loss? (Or am I wrong?)

    Challenging LA’s preventative strategies as not stopping Ground 8 would also fall on the basis that Ground 8 is perfectly legal. LAs can’t insist that those they work with refrain from exercising their legal rights and couldn’t be JR’d on the basis that they have failed to do so, in my suddenly rather unhumble opinion.

    Agreed an FoI request for that information would be interesting, perhaps more so would be L&Q’s policy on the use of Ground 8 – which I take to have been under challenge in Weaver. Absent a change in current conditions, I suspect the Weaver approach is the best shot at the present.

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  16. K

    The Anomaly of Public Duty Private Interest.

    The sub contracting of Human Rights and the Human Rights Act 1998 (UK Domestic legislation)

    The purpose of the Human Rights Act 1998 in the United Kingdom of Great Britain and Northern Ireland was to ensure that people whose rights under the European Convention on Human Rights had been violated would have “an effective domestic remedy in the courts of the United Kingdom”, as required by article 13 of the Convention, and as such, would not have to seek redress in the European Court of Human Rights in Strasbourg.

    [Edited by Nearly Legal, as this was a lengthy and unattributed quote. Suffice it to say that there were quotes from Jack Straw and the HRA white paper amongst others]

    Two points emerge clearly from these extracts. One is that it was envisaged that purely private bodies which were providing services which had previously been provided by the state would be covered. The second is that the UK Government was anxious that any acts for which the United Kingdom might later be held responsible in Strasbourg would be covered by the domestic remedies. Hence the definition would go ‘at least as wide’ as that.

    When the Human Rights Act of 1998 Act was passed, it was very well known that a number of functions formerly carried out by public authorities were now carried out by private bodies. Section 6(3)(b) of the 1998 Act was clearly drafted with this well-known fact in mind. The performance by private body (A) by arrangement with public body (B), and perhaps at the expense of (B), of what would undoubtedly be a public function if carried out by (B) is, precisely the case which section 6(3)(b) was intended to embrace.

    This information is the quintessence that housing associations are public bodies defined as “public Authority”.

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  17. Nearly Legal

    K. I’ve edited your comment as it contains a lengthy but unattributed quote.

    ‘This information’ is sadly not the ‘quintessence’ (a quintessence of what) that housing associations are public bodies. It is part of one argument why they should be. This argument had limited success in Poplar Housing v Donoghue and much less success, i.e. none, in YL v Birmingham in the House of Lords.

    I’d be grateful if you would check some of the cases and issues being discussed before making a comment like this again.

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  18. K

    I will approach your observation from yet another legal dimension. That of consumer protection.

    Many tenants in housing association housing have Assured tenancies.

    Assured tenancies are governed under the Housing Act of 1988.

    The Unfair Terms in Consumer Contract Regulations of 1999 referred to as [“the Regulations”] came into force in the United Kingdom on 1st October 1999.

    Therefore evidently the Unfair Terms in Consumer Contract Regulations 1999 did not exist before 1999.

    The Court of Appeal had confirmed that the Directive and Regulations apply to contracts relating to land.

    This is set out in the case of London Borough of Newham v Khatun, Zeb, Iqbal and the Office of Fair Trading [2004] EWCA Civ 55 where the Assured Tenancy Agreement as the instrument of the Housing Act of 1988 had become subject to the Protection of the UTCCR 1999 within the meaning of the Unfair Terms in Consumer Contract Regulations.

    In relation to the said case of London Borough of Newham v Khatun, Zeb, Iqbal and the Office of Fair Trading [2004] EWCA Civ 55 of 24 February 2004, the Court of Appeal in the United Kingdom had affirmed that Tenants in public sector accommodation as ‘consumers’ are protected by the Unfair Terms in Consumer Contract Regulations.

    The Court of Appeal ruling ensured that Assured Tenants are in fact subjects to the Protection of the Unfair Terms in Consumer Contract Regulations of 1999 enacted some 11 years after the Housing Act of 1988 and confirmed by the Court of Appeal in 2004 some 16 years after the Housing Act of 1988.

    The said Court of Appeal decision of 24 February 2004 applied this ruling retrospectively to all Assured Tenancy Agreements entered into after 1st July 1995 where the landlord is a ‘seller or supplier of a property and the tenant a ‘consumer’ within the meaning of the Unfair Terms in Consumer Contract Regulations 1999.

    The said Judgment ensures that tenants – including tenants in public sector accommodation –have consumer protection from unfair terms.

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  19. J

    K – not quite as simple as that:
    (a) the 1999 Regs repealed and replaced the 1994 Regulations of the same name. There is no material difference between the two, so, any argument that you want to run as regards the Regs could go back to 1994, not 1999.

    (b) however, it is far from clear that the 1994/1999 regs apply to contracts entered into prior to the commencement of the regs. There is (so far as I am aware) no binding authority on the point. The Lands Tribunal has doubted that they have any application to contracts entered into pre 1994 whilst the editors of Chitty on Contracts take the firm view that they do not apply in such cases.

    (c) The Regs. have two main effects (i) any ambiguity in the meaning of a contractual term must be interpreted in the manner most favourable to the oonsumer (ii) any unfair terms (terms which are contrary to the requirement of good faith, have not been negotiated individually and which cause a significant detriment to the interests of one party) are void.

    The OFT has published guidance as to what constitutes an unfair term. From memory, the guidance sets the standard quite high (i.e, a clause allowing a landlord to claim his costs of suing you is fair, it would only be unfair if claimed on the indemnity basis).

    To try and focus matters – what what particular unfairness are you thinking of? It’s all very well making a bold statement of principle, but what is the context?

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  20. Nearly Legal

    And, of course, UCTA has nothing at all to do with whether a housing association is a public body…

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  21. K

    J. Absolutely, you are right that the 1999 regs replaced the 1994 ones. In any event, both are “Post” Housing Act 1988.

    Article 5 (1) of the UCTR 1999 set out that any term in a contract not individually negotiated with the consumer (applies to social housing assured tenancy agreements too) shall not be enforceable and binding on the consumer [the tenant in the case of housing].

    Here is the official OFT link about Assured Tenancies to support my legal theory. You will see my interpretation is similar to that of the OFT. [Office of Fair Trading]

    http://www.oft.gov.uk/advice_and_resources/publications/guidance/unfair-terms-consumer/oft356

    Reply
  22. Nearly Legal

    K. s.5(1) UCTR 1999 says, in its entirety:

    “5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’rights and obligations arising under the contract, to the detriment of the consumer.”

    Your excerpt is inaccurate by ommission. There is no requirement that every contract shall be individually negotiated.

    What is your point about Housing Association tenancies, UCTA and public function that we are all missing?

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  23. K

    Nearly legal; if you care to read the PDF issued by the OFT [set out in the above weblink] you will see the public function nexus.

    On the 5 (1) UCTR 1999 citation you are absolutely right. That is exactly what s 5 (1) sets out.

    s. 5 (2) UCTR is also interesting.

    Reply
  24. Nearly Legal

    K
    s. 5(2) follows logically from s.5(1) – drafted in advance is not individually negotiated. But there is still no requirement for the contract to be individually negotiated. it is only unfair if “it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.” This can’t apply to terms for possession if they are in accord with statute. Terms given in statute cannot be unfair under UCTA, so it cannot exclude grounds for possession under HA 1988.

    I don’t see what it is you mean in the OFT PDF. Please point me at the section you are talking about.

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  25. K

    Page 2 of the Office of Fair Trading PDF Document of September 2005. Clasue 1.5 “Unfair Terms in Consumer Contracts 1999 apply to public authorities such as a local authority (even where the local authority has a duty to supply housing).

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  26. Nearly Legal

    So public authorities as housing authorities are subject to UCTA. Fine.

    How does this have any relevance to whether housing associations are public authorities?

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  27. K

    Because once housing associations are declared by way of judicial decisions as public authorites the UCTR will automatically cover Assured tenancy agreements issued by housing associations.

    By the way, housing associations are already public authorities by virtue of operating as proxy entities of local authorities in providing permanent housing to persons in necessitous circumstances nominated by the local authority for permanent housing on behalf of a local authority.

    This arrangement proceeds on the maxim of [Qui facit per alium facit per se] – (i) The one who acts through another. (ii) [He who does anything by another does it by himself]and fits nicely into the pocket of vicarious liability.

    Liabilities in tort to the acts or omissions of a statutory utility, local authorities or government department are just the same as liabilities for tort of a private person. Public authorities, their agents and employees enjoy no immunity from civil liability.

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  28. Nearly Legal

    So this was a complete shaggy dog story.

    Enough is enough.

    Reply
  29. simply wondered

    wary of starting a random hare when my knowledge is rudimentary, but….

    given that housing associations will almost certainly be emanations of the state under kampelmann, why doesn’t that close the circle?

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  30. simply wondered

    public function…the test in kampelmann appearing looser than in british gas:
    ‘It may, however, be relied on against (organizations or bodies which are subject to the authority or control of the State or have special powers beyond those which result from the normal rules applicable to relations between individuals, such as local or regional authorities)

    or other bodies which, irrespective of their legal form, have been given responsibility, by the public authorities and under their supervision, for providing a public service’

    doesn’t this last bit cover them? (too crappy to bold it i’m afraid)
    purposively, the provision of social housing is a state function delgated to a quasi-private body. (i get this crap from a certain rsl all the time who claim they are/aren’t a rsl as it suits them.)

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  31. Vaz

    There is discrimination and velvet tyranny in social housing where housing officers collectively seek the eviction of tenants to make them homeless and issue spurious possession claims in county courts using tax payers money.

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  32. Nearly Legal

    Simply. The trouble is that while that might be an ok argument when LA stock transfers are involved, it doesn’t fly so well when the other areas of an HA’s housing function are taken into account. What of the shorthold tenants? Much more like a private landlord for example. I think you face the same problems as the public law or human rights lines of argument.

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  33. simply wondered

    while i think it might run, i lack your experience so will give way on the argument.
    so let’s go another way: under s6 HRA the local authority has a positive obligation to safeguard the individual’s right to a home and family life; by delegating its powers to (alleged) non-public bodies (who couldn’t run a bath even if you showed them both taps and and turned them on) it has failed to carry it out. by definition, if rsl’s are non-public they can do things to prejudice the rights of those in social housing which the public body can’t do. the LA has thus discriminated against those in need of its services by such a delegation. it runs against the purpose of the act to allow such an inequality, so the same rules must be imposed upon those providing services for the LA.
    same thing the other way up, isn’t it? (sounds exactly like qui facit per alium… as above – not to mention why i think the kampelmann test would work)
    might not use the ‘bath’ bit in court.

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  34. Nearly Legal

    More or less the same thing, yes – relies on stock transfers to make the point. Back to Poplar Housing v Donoghue. Any attempt to extend local authority duty to RSLs relies on the RSL as effectively a proxy for the LA. The trouble is that social housing in and of itself is not a proxy LA activity or even proxy state activity – although the latter is less clear.

    Plus the assumption that an RSL is incompetent per se is one I can imagine a Court being unwilling to make a general rule on.

    By the way, there is no right to a home per se under HRA – this one got thrashed out very early on.

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  35. simply wondered

    the generally incompetent bit was just for colour – if i was making a case about a dog, i would most likely not bother stating it had 4 legs either. just personal experience with one of (i hope) the worst examples of the class.

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  36. Richard Paris

    Well what a turn up!! It maybe that Susan Weaver lost her argument about London & Quadrant using ground 8 against her BUT Richards LJ did find that RSLs were public authorities when allocating, managing and terminating tenancies, were bound to act within the terms of the Human Rights Act 1998 and were judicially reviewable.

    Seems Peabody-v-Greene from 1978 is no longer good law – was it ever?

    How will RSLs, the National Housing Federation, the Housing Corporation and most importantly L&Q react? Will L&Q go to the Court of Appeal?

    I still struggle with the notion that any RSL would want to argue it could behave in a Wednesbury unreasonable way and would not want to be acting in a Human Rights compatible way!! Maybe the financial imperative has the edge even in a post-sub-prime market melt-down.

    Anyone see a pattern emerging with L&Q? NBHA-v-Matthews in 2004 (RSL using Ground 8) also involved L&Q-v-Morgan. L&Q-v-Ansell coming up at House of Lords in October.

    Again question why doesn’t Housing Corporation do anything when an RSL patently breaches regulatory guidance?

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  37. Nearly Legal

    Umm Richard, thanks for the comment, but you might want to check the current front page of the blog for a detailed discussion of Weaver v L&Q !

    Reply

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