This judicial review of R(TRX) v Network Homes (2022) EWHC 456 (Admin) CO/3538/2021 is a useful restatement of the principles which apply in determining when decisions of Private Registered Providers of social housing (Housing Associations) can be judicially reviewed. The case concerned an application for a management transfer following threats of domestic abuse made to the Claimant, TRX, by X, her former partner. The Claimant brought 6 grounds of review after her request for a management transfer was refused by the Defendant. The Claimant was seeking to move to safe accommodation, where X could not locate her, and an additional bedroom because she had three children. The Defendant had allocated her present two-bedroom assured tenancy to her in 2018 as Part VI accommodation under the Housing Act 1996, through a nomination agreement with the local authority (the Property). The Claimant’s relationship with X had ended in 2014 and he had never occupied the Property, but was the father of the two older children. The Defendant’s main argument was that the leading authorities of Weaver and McInytre, concerning when Housing Associations are exercising public functions, did not apply here, meaning its decision was not amendable to judicial review (Nearly Legal notes on Weaver and on McInytre). Judgment was given by Mrs Justice Ellenbogen DBE and that discussion formed the heart of the case. She found that the Defendant had been exercising public functions, the decision could be JR’d and in principle, a claim for indirect discrimination under the Equality Act 2010 could also be brought. There was not sufficient evidence to do so on the facts of this case, and the Claimant’s only successful ground of challenge was the failure to give adequate reasons for the refusal of the transfer request.
The management transfer request
The relevant extract of the Defendant’s Lettings and Allocations Policy (the Policy) provides:
“3.10.1 Transfers
Tenants wishing to transfer are subject to an assessment process. They can only qualify after they have held their tenancy for 1 year and they must hold a permanent tenancy. Applications are reviewed every 3 years except management transfers which are reviewed every 6 months. Transfer applicants who refuse three reasonable offers will be suspended for a period of 1 year. With the exception of …, the remainder of the organisation operates a banding system.
Band Categories
Band A Life threatening medical; homeless with no temporary accommodation; social services nomination for adoption/fostering purposes; life threatening violence; ex LA service tenancy; urgent decant or CPO; adapted property; under occupier of 1 or more bedrooms.
Band B Urgent social or medical needs; harassment or threat of violence; homeless; move on quota; decant; statutory overcrowded.
Band C Social or medical needs; overcrowded; non priority homeless; social services nomination.
Band D Applicants not in the above bands.
3.10.1.1 Reasons for internal transfers are summarised in the table below.
Reason Activity Covered
… …
Management Transfers
Qualifying exceptional circumstances are:
• There is a severe or immediate risk to life or personal safety of a Network resident because of domestic violence, harassment, hate crime, safeguarding issues or victim of a serious crime.
• Network Homes cannot take any other action to resolve the problem and it is not possible for the police, or the local authority housing or social services department to take quicker or more effective action.
• Any other exceptional circumstance must be approved by the panel.
….
3.10.2 Management Transfers
3.10.2.1 A management transfer is where a resident needs to move because of an exceptional circumstance. Exceptional circumstances are set out in the table in 3.10.1.1.
In February 2020 the Claimant was placed in Band C under the Policy. On 2/3/21 she made an oral request to the Defendant’s Mr Kyem that she be moved to Band A because of the ongoing risk of domestic abuse from X. She was advised that nothing was available, and she should consider relinquishing the Property and making a homeless application to another local authority. Mr Kyem said if she provided supporting evidence he could put her application before the Defendant’s panel for consideration of a management transfer. The Claimant had made some enquiries of a local authority, but they had referred her back to the Defendant.
On 12/2/21 the Defendant contacted Mr Kyem with a letter of support from her advocate at the Asian Women’s Resource Centre, setting out a MARAC plan for the Claimant, and other information in support of her case. (MARAC stands for Multi-Agency Risk Assessment Conference, a meeting of professionals in high-risk domestic abuse cases, where a safety plan is put together for those at risk.) She obtained an ex parte non-molestation order on 18/3/21 and on 12/5/21 provided a detailed report from her Social Worker in Brent Social Services to Mr Kyem addressed “to whom it may concern”. The Claimant told Mr Kyem that the police were involved and had referred her to social services.
Over the course of June and July 21 the non-molestation order was made final, Mr Kyem informed the Claimant on at least two occasions that the Defendant did not offer emergency accommodation, and that she must obtain homeless accommodation from the local authority on an emergency basis if necessary. He also asked for supporting evidence from the police, the Claimant provided a police case number.
On 12/7/21 the Defendant wrote to the Claimant giving the outcome of the panel:
“I write to you with an update following the management transfer panel held last week. I presented your case with the evidence you and your support team provided but also with the information provided to me by the police. Please see the panel’s comments & decision below;
The panel did ask that the resident seek legal advice around the custody of the children and the possibility of obtaining a ‘non-molestation’ order. A Non molestation order offers a degree of protection for the resident and it is a court order – if this is breached then the police will need to be informed and the perpetrator arrested and charged. As advised by the police, the perpetrator has not visited the home address. We advise that the resident should report to the police and possibly request that the police to put them on a heightened alert list so that the police attend their home within a few minutes of receiving a call from that property. If the resident deems their property and situation unsafe, we would advise they contact any local authority of their choice for immediate temporary re-housing. We are unable to offer any band increase. If there are new incidents and a supporting letter from the police deeming these cases a high risk or a MARAC report then we may reconsider our stance.”
The case
The Claimant sought judicial review on 6 grounds: inadequate reasons in the decision letter; misapplication of Defendant’s policy (the suggestion that only domestic abuse by physical violence would be considered); irrationality of need for police supporting evidence; Defendant’s insistence Claimant gave up her tenancy, putting her at risk of homelessness; requirement that domestic abuse be reported and subject to an active investigation; and unlawful indirect discrimination pursuant to ss.19 and 29 Equality Act 2010 (the 2010 Act).
Giving judgment, Ellenbogen J started with the Policy itself, which was expressed as aiming to ensure fairness, transparency and regulatory compliance in key areas of allocations and lettings. The Claimant had submitted evidence about the breadth of the Defendant’s work in this area, and the scale and size of the lettings. It said that the Defendant worked with local authorities to meet housing need and to provide choice to tenants, including in relation to transfer arrangements. The Defendant agreed that it was a hybrid public body and that some of its functions would be amenable to judicial review, but not the instant case. The Defendant’s witness evidence said it had no role in providing emergency accommodation. In relation to the Claimant, it said that it was not allocating accommodation, but prioritising applications.
The judge applied R(McIntyre) v Gentoo Group Ltd [2010] EWHC 5, where an assured tenant judicially reviewed the Housing Association landlord’s refusal to give consent to exchange homes with another tenant. In that case, the landlord imposed a condition that rent must be fully paid up before giving consent. It was argued that this type of condition was in the nature of a private law contractual obligation. She also relied on the reasoning in R(Weaver) v London and Quadrant Housing Trust [2009] EWCA Civ 587, in which the decision turned on whether the termination of the tenancy in that case had been the exercise of a public function and was amenable to judicial review. The judgment in Weaver also concerned Convention rights applicable to hybrid public bodies and what was a public function for the purposes of s.6(3)(b) of the Human Rights Act 1998 (the HRA). The judge dismissed the Defendant’s argument that Weaver did not apply because the instant case is not an HRA challenge. The Defendant argued that the basis for judicial review set out at set out at CPR 54.1.(2)(ii) is different from functions of a public nature falling with s.6 HRA, but the judge found “no material difference” between the two.
The judge held that the decisions in relation to management transfer in this case were amenable to judicial review. Citing McIntyre at para 26, she held that it was important to consider not the minutiae of each step or decision being taken, but the essence of the function and the context:
“What makes public law applicable is that the decision was one taken in relation to the exercise of a public function. There is no additional requirement that the specific decision impugned has itself to have some other and further “public law element” (whatever that may mean or involve.).”
A reviewing court must consider the function to which the act is contributing, as set out in Weaver at paras 55, 66 and 76 of the Court of Appeal decision. It must break down how the hybrid public body goes about allocating or otherwise carrying out its public functions. The judge further applied this reasoning to the Claimant seeking to bring a ground of challenge under the Equality Act 2010, holding this was also within scope.
In relation to the specific grounds of challenge, she did find that Ground 1, the failure to give adequate reasons, was made out. the Policy itself said reasons would be given for refusal. It was an established principle of public law that where reasons were given, they must be adequate and intelligible. In this case, there was not sufficient clarity for the Claimant to know why she had been refused and to assess the prospects of challenging the adverse decision.
The rest of the grounds were unsuccessful. Ground 6, the Equality Act challenge, failed for lack of evidence, either individual or statistical, that the Claimant had experienced less favourable treatment. In reviewing the Policy, the judge restated the principle that construction of policies is for the court: Mandalia v SSHD [2015] UKSC 59 at 31.
Because of the Claimant’s success on Ground 1, the decision would be quashed and remitted to the Defendant. Because the majority of the discussion in court and in judgment concerned the public body questions, the judge awarded 90% of costs to the Claimant despite her having been successful on one out of six grounds.
Case comment
The case demonstrates how little wiggle room the court will allow hybrid public bodies when they claim not to be carrying out public functions. The reasoning is useful because it is broad brush and principles based. It doesn’t undertake a forensic analysis of each step the Defendant took in considering the Claimant’s application, which would have been a bit artificial. It does suggest a social landlord trying to resist a challenge because of the private nature of the function being carried out is unlikely to be successful; particularly where nomination agreements and similar arrangements make it difficult to distinguish between local housing authorities and other social landlords. The Equality Act 2010 ground was not fully developed, but there are useful pointers in the judgment about evidential requirements that would have assisted the Claimant to flesh this out.