Poplar Housing and Regeneration Community Association Ltd v Donoghue

A private body does not perform a public function merely because its services enable a public authority to discharge a statutory duty. Whether a hybrid body's particular act is public depends on its public character, including statutory authority, public control and the extent to which it is enmeshed with a public authority.

A housing association may therefore be a functional public authority for particular housing-management acts without all its functions becoming public. Mandatory recovery of an assured shorthold tenancy under section 21(4) of the Housing Act 1988 is compatible with article 8 where it pursues legitimate social-housing policy and is proportionate. Section 3 of the Human Rights Act 1998 permits Convention-compatible interpretation, but not an alteration which would radically change legislation's effect.

The appellant occupied temporary accommodation originally provided by the London Borough of Tower Hamlets while it investigated her homelessness application. After she was found intentionally homeless, the property was transferred to the respondent housing association. The association served notice under section 21(4) of the Housing Act 1988 and sought possession.

District Judge Naqvi made the mandatory possession order. He rejected arguments based on articles 6 and 8 of the Convention but postponed possession for 42 days and permitted a direct appeal.

In Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595, the Court of Appeal considered whether the summary procedure was proper, whether the association was a functional public authority, whether possession contravened article 8, and whether a declaration of incompatibility was available or necessary.

1. Appeal dismissed. Lord Woolf CJ delivered the judgment of the court. The possession order was upheld and the requested declaration of incompatibility was refused.

2. The district judge was required to address the Convention contention once it was raised. He was nevertheless entitled to decide it summarily. A housing judge could use practical experience and common sense when assessing the competing public and private considerations. A lengthy inquiry into successive governments' housing policies was unnecessary.

3. Section 6 of the Human Rights Act 1998 should receive a generous interpretation. A private body's performance of services which a public authority must secure does not, by itself, make the body's acts public. The relevant inquiry is whether statutory authority, public control, close institutional relationships or other features give the particular act a public character. Regulation, charitable status, public funding and the performance of an activity which could be undertaken publicly are not independently decisive.

   Poplar had been created by Tower Hamlets to receive its housing stock. The borough was represented on Poplar's board and guided its treatment of the appellant. Poplar also stood in substantially the borough's former position towards this sitting tenant. Its provision of accommodation and pursuit of possession were therefore so closely assimilated to the borough's activities that they were public functions. This conclusion did not make every function of Poplar, or of housing associations generally, public.

4. Eviction affected the appellant's home and family life, but the interference was justified under article 8(2). Section 21(4) of the Housing Act 1988 embodied Parliament's policy of protecting the social-housing system as a whole and permitting the prompt recovery of temporary accommodation. The policy pursued legitimate interests and was proportionate. Particular deference was appropriate because the allocation of scarce social housing involved complex economic and social judgments. The availability of an appeal against the intentional-homelessness decision, regulation, guidance and the housing ombudsman also formed part of the legal context. There was no breach of article 8 or article 6.

5. Obiter: section 3 of the Human Rights Act 1998 requires compatible interpretation where legislation would otherwise breach the Convention. Any modification must go no further than compatibility requires and must remain interpretation rather than legislation. Inserting a general reasonableness discretion into section 21(4) would radically reduce landlords' ability to recover possession and defeat Parliament's objective of certainty. That alteration would be legislative.

6. The court also gave procedural guidance concerning proposed declarations of incompatibility. Formal notice to the Crown should be given by the court, while the party raising incompatibility should provide early informal notice to the Crown, the court and the other parties. A county court cannot make a declaration of incompatibility.

• Court of Appeal: In Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595, the court dismissed the tenant's appeal, upheld the possession order and refused a declaration of incompatibility.

• Bow County Court: District Judge Naqvi made a possession order under section 21(4) of the Housing Act 1988, rejected the Convention arguments, postponed possession for 42 days and permitted a direct appeal.