London & Quadrant Housing Trust v Weaver, R. (On the application of)

A registered social landlord may be a hybrid public authority when providing subsidised social housing. Its status depends on a broad, fact-sensitive assessment of all relevant features, including public subsidy, statutory co-operation with local authorities, governmental housing objectives and the nature of regulation.

An act is not necessarily private under section 6(5) of the Human Rights Act 1998 merely because its immediate source is a contract. Where termination of a social tenancy is inseparable from a public housing function, it is a public act subject to Convention principles. This conclusion extends to the landlord’s social housing generally, but not ordinarily to accommodation let at market rents.

The appellant was a registered social landlord providing subsidised housing. It sought possession against an assured tenant for rent arrears. The tenant alleged breach of a legitimate expectation arising from Housing Corporation guidance and relied on article 8 of the Convention.

The Divisional Court rejected the tenant’s claim on its facts, finding neither an enforceable legitimate expectation nor any breach. It nevertheless declared that the Trust’s management and allocation of housing, including tenancy termination, was a public function under section 6(3)(b) of the Human Rights Act 1998 and was amenable to judicial review.

The Trust appealed the declaration. The central issue was whether terminating the social tenancy was a private act within section 6(5), notwithstanding the Trust’s status as a hybrid authority.

1. By a majority, the appeal was dismissed. Elias LJ and Lord Collins held that the Trust was a hybrid public authority and that its termination of the social tenancy was not a private act under section 6(5) of the Human Rights Act 1998. Rix LJ dissented.

2. Whether a function is public requires a broad, generous and fact-sensitive assessment. Relevant considerations must be weighed cumulatively. They include public funding, statutory or special powers, performance of a governmental role and provision of a public service. Regulation and performance of an activity also undertaken by public bodies are not decisive by themselves.

3. The Trust’s provision of subsidised social housing had sufficient public character. It received substantial capital subsidy; worked closely with local authorities under statutory co-operation and nomination arrangements; helped fulfil governmental housing objectives; and was subject to regulation directed towards securing low-cost housing for people in need. Its charitable and non-commercial character reinforced, but did not independently establish, that conclusion.

4. The private-law source of a power is relevant but not conclusive under section 6(5). An act must be characterised in the context of the function it serves. Granting and terminating a social tenancy determine who receives a publicly supported housing benefit and are integral to the provision of social housing. Treating every contractual act as private would substantially weaken the protection Parliament intended hybrid authorities to provide.

5. The conclusion applied to all the Trust’s social-housing tenants, whether or not their particular properties had been acquired with public grant. Public finance supported the Trust’s social-housing provision generally. It did not ordinarily extend to tenants paying market rents, whose position resembled that of tenants in the private sector.

6. The Trust was also amenable to judicial review in performing the relevant function. The conclusion remained fact-sensitive and did not establish that every registered social landlord, particularly one receiving no public subsidy, necessarily had the same status.

• Court of Appeal (Civil Division): By a majority, dismissed the Trust’s appeal and upheld the declaration concerning its public-law status and amenability to judicial review: [2009] EWCA Civ 587.
• Administrative Court/Divisional Court: Rejected the tenant’s substantive legitimate-expectation and article 8 claims, but declared that the Trust’s management and allocation of housing, including tenancy termination, was a public function under section 6(3)(b) of the Human Rights Act 1998 and was amenable to judicial review. No citation is stated.