I’m eagerly awaiting the judgment in R(Weaver) v London & Quadrant, but, in one of those quirks of synchronicity, Bailii has just put the Court of Appeal Judgment in Donoghue v Poplar Housing & Regeneration Community Association Ltd & Anor [2001] EWCA Civ 595 up online. It made an interesting re-read, thinking about the issues in Weaver.

I don’t want to rehearse the Donoghue arguments in their entirety. We know the basis of an intertwined history and provision of temporary accommodation post homeless application that the Court held up as the reason for finding public function, and I doubt the HRA arguments are of much use to Weaver, despite (or rather because) concerning mandatory possession (see below). But while browsing through, a few paras caught my eye. For example, para 46:

Many local authorities have transferred some or all of their housing stock to one or more RSLs. This has happened so far as Poplar is concerned. Poplar was created for the purpose of taking over part of the housing stock of the borough of Tower Hamlets […] Mr Brockway states that as a matter of policy the Corporation has always asked RSLs to grant the most secure form of tenure available to its tenants. This will usually be achieved by granting periodic tenancies of which possession can only be achieved on discretionary grounds. Such tenancies are accepted by Mr Luba as providing the necessary protection which he submits is necessary to comply with Article 8. The Corporation requires that if a tenant has an assured tenancy, then an order for possession can only be sought if it is reasonable to seek the order.

So, the use of Ground 8 against previously secure tenants who had been part of a stock transfer is…? Here Tower Hamlets ‘asked the RSL to give the most secure tenancies’, but could this be seen as a requirement on stock transfer tenancies as in Jan Luba’s point? Donoghue doesn’t say so, but apparently because the Court was prepared to accept that an assured tenancy meant a reasonableness criterea for possession was inevitable. But this crops up in the consideration of public function, not of Art 8.

On the other hand, as we now know, the Corporation doesn’t ‘require’ that it is reasonable to seek the order, it merely recommends it, which devalues this point somewhat.

On Public Function, the Court of Appeal said at para 66:

[…] We emphasise that this does not mean that all Poplar’s functions are public. We do not even decide that the position would be the same if the defendant was a secure tenant. The activities of housing associations can be ambiguous. For example, their activities in raising private or public finance could be very different from those that are under consideration here. The raising of finance by Poplar could well be a private function.

Some things have changed since Donoghue, for example, the classification of HAs as public bodies by the Housing Corporation for VAT and EU procurement law perhaps makes the ‘raising finance’ example in Donoghue look a little different, and recasts the balancing of private and public carried out in that case.

I don’t know if Weaver involved an HRA challenge to Ground 8. If it did, frankly I would expect it to go the same way as the challenge to s.21 in Donoghue.

However, if Weaver establishes public function sufficient for JR, I would personally have thought that a challenge to a policy of using Ground 8 would have a better shot, on the basis of, say,

i) unreasonableness (failure to address circumstances, failure to meet the stated aims of the policy – recouping of rent, etc.) and

ii) fettering of discretion (a policy to use ground 8 on arrears over 8 weeks fetters the available discretion to use ground 11 & 12 or not to bring a possession claim),

with the Housing Corp Guidance to the fore in both.

And, perhaps, with an eye to Donoghue, a citing of Lord Woolf in para 46 on the expectation of reasonableness in a possession claim for an assured tenancy. After all, Ground 8, if pleaded as the sole ground of possession, not only avoids the Court’s consideration of reasonableness, but also of whether the landlord has followed the pre-action protocol on rent arrears.

We’ll see. Better minds than mine have spent considerably longer on it than I have.