R (Garbet) v Circle 33 Housing Trust and another [2009] EWHC 3153 (Admin) [link is to a .doc] was discussed by us (via news reports in Inside Housing and on Radio 4) below. I asked for a transcript and, as if by magic, one was provided. I stand by my original view that this is actually a bit of a damp squib and certainly doesn’t give rise to any point of general importance (at least, in terms of law. I don’t dispute the factual importance to the Claimant). The more interesting points are the ones not (fully) argued but hinted at towards the end of the judgment . Anyway…

The claimant was, and had been since July 2001, an assured tenant of sheltered accommodation which was currently provided by the defendant. When the claimant moved to her current accommodation there was a resident warden and it was common ground that the tenancy agreement obliged the defendant to provide a resident warden (although no-one could actually find the relevant tenancy agreement). It was also common ground that the agreement provided for the defendant to vary the services it provided after consultation with the claimant.

In or around April 2008, it appears that new management arrangements were put in place and, at this stage, the problems began to emerge. There was some confusion (and I put it no higher than that) as to whether or not a resident warden would be provided (in fact, the same resident warden who had been working at the site since 2001) or whether there would be a move to a ‘floating’ warden service (see [13]-[19]). When it eventually became clear that the plan was to move to a ‘floating’ warden service, the claimant and other residents protested and sought to persuade the defendant to retain the resident warden service. It was said (rather disingenuously in the view of Mumby LJ at [24]) that the existing warden wanted to retire.

At this stage, the claimant instructed solicitors who threatened to seek judicial review of the decision to retire the resident warden and not to replace her with another resident warden. It was said that the claimant had a legitimate expectation that a resident warden service would be provided. At this stage, it appears that the defendant acknowledged that some form of consultation would have to take place regarding the future of the resident warden service.

A claim for judicial review was issued on January 29, 2009, relying on the legitimate expectation argument. HHJ McKenna (sitting as a deputy High Court Judge) granted an ex parte interim injunction requiring the defendant to continue providing a resident warden until the matter could come back before him a few days later. When the case did come back before him, the Judge discharged the injunction and gave directions for an acknowledgement of service to be filed and the case immediately to be placed before a High Court Judge ([2009] EWHC 384 (Admin)). This was done and Pitchford J listed the matter for a rolled up hearing – which is what Mumby LJ was dealing with.

Between the order of Pitchford J and the judgment, the defendant commenced a process of consultation during which a number of options were offered and voted on by the residents, with the most popular option (a specialist support service) being what the defendant decided to provide for a pilot period of one year. Perhaps surprisingly, no application to amend the Grounds in light of these developments was made (at [54]).

The hearing itself does not appear to have been an entirely satisfactory one. Shortly before the hearing, the claimant had indicated that she intended to seek a Protective Costs Order but, in the end, did not pursue this. It was also clear that there was a significant amount of evidence filed, not very much of which appears to have assisted his Lordship (see his comments at [64]), and – at least as regards the evidence from the Claimant – he found to be “curious… for what it does not say…” (at [68]). In addition, as the case was argued before the Court of Appeal gave judgment in Weaver, the parties were given permission to submit written submissions on that case once the judgment was handed down.

Mumby LJ was of the view that the only matter before him was the legality of  “the Defendant’s decision not to continue to provide a resident warden following [the retirement of the original warden]…” (at [60]). This required him to consider “the nature and content of the relevant obligations (if any) owed by the Defendant to the Claimant” and then whether “the Defendant breached any of those obligations” (at [61]).

It was clear that the only obligations between the parties were found in the tenancy agreement. The obligations (insofar as material) were to provide a Warden Service (which, in the factual context of the case, meant a resident warden) and to consult before varying the services (at [72] and [76]). Framing those obligations as “legitimate expectations” added nothing. They were contractual obligations and the entire extent of the obligation was contained in the contract (at [78]-[79]).

It was also clear that the defendant had breached those obligations. There was no doubt that it had not consulted prior to making the changes to the resident warden service (at [80]-[81]). The fact that an “equivalent service” may have been provided pending consultation was irrelevant. Whether or not sheltered housing ‘required’ a resident warden was similarly irrelevant. The contract provided for consultation and that had not been complied with (at [84]).

Thus, the defendant was in breach of its (contractual) obligations to the claimant in failing to provide a resident warden without consulting the claimant.

The problem was one of relief. Even if this was a public law claim (which his Lordship declined to decide – at [89]), a quashing order would be inappropriate and a declaration would be sufficient. A declaration to that effect would be made. Permission to move for JR was also granted (at [90]-[93]).

The claimant had indicated that she intended to advance further arguments relating to a pure private law claim and designed to knock out the power of the defendant to vary the services provided at all. Those arguments (at [95]-[96]) are much more (legally) important but, as Mumby LJ said, will need to form part of another case.

So. What we’ve got here is quite a narrow judgment on the interpretation and application of one tenancy agreement. Mumby LJ is plainly right that there had been a breach of the obligations of the tenancy, but, with the greatest respect, his analysis on whether this is a public/private law dispute is remarkable. Permission to move for Judicial Review was granted, but the court declined to hold that this is a public law dispute!? If this is a private law matter then permission is not needed and the case should be transferred to the QBD / county court. If permission is needed (and granted) then this must be a public law case. I can understand why Mumby LJ didn’t want to deal with Weaver but, frankly, this is a terrible cop-out. For what it’s worth, this appears to me to be an entirely private law matter, where relief should sound in either an injunction to restrain the breach of contract or damages.

A victory then, for the claimant, but perhaps not of the general importance or significance that sheltered housing campaigners might wish. Having said that, if they pursue the additional arguments that they sketched out at the end of the judgment then we might get a much more interesting result. Given the criticism which his Lordship expressed of the defendant (see [28], in particular), one imagines that they’d be advised to settle any further private law claim brought against them.