Hayes, R (on the application of) v SS Communities and Local Government

Under the Housing Act 1985, the Secretary of State’s consent to a housing transfer is not an appellate reconsideration of the underlying redevelopment scheme. The statutory power permits consideration of a wide range of relevant matters, subject to its purpose and statutory limits, including tenant support.

There is no general public-law duty to give reasons for granting consent. Guidance stating that the Secretary of State will consider whether an old ballot remains representative does not itself impose a duty to explain that assessment in the decision letter. Human-rights challenges must be established on evidence. Article 8 and property rights may be engaged, but a properly authorised regeneration scheme may be justified by its benefits to the wider community.

The claimant, a long-standing resident of the Clapham Park estate, sought judicial review of the Secretary of State’s consent to the transfer of the estate to Clapham Park Homes Limited as part of a major regeneration scheme.

The surviving grounds were confined by earlier case-management orders. They concerned whether the Secretary of State had been required to give reasons, particularly because more than twelve months had elapsed since the tenant ballot, and whether the decision breached Articles 1, 3, 8 and 14 of the Convention and Article 1 of the First Protocol.

1. Claim dismissed. The statutory scheme gave the Secretary of State a wide discretion to grant or refuse consent, subject to the purpose of the legislation. The Secretary of State was not required to act as an appellate decision-maker or reopen the detailed planning, housing, funding and redevelopment issues considered at earlier stages. The statutory concern included whether the required majority of secure tenants supported the disposal.
2. There was no general duty to give reasons for an administrative decision. The statutory provisions did not expressly impose such a duty, and fairness did not require one in this context. Requiring reasons would tend to require reconsideration of the entire underlying process. The decision letter sufficiently stated that the Secretary of State had considered the statutory requirements, tenant views, representations and relevant matters.
3. Paragraph 10.41 of the Housing Transfer Manual did not alter that conclusion. Its statement that the Secretary of State would take a view on whether an old ballot remained representative, or whether further consultation or evidence was required, did not create a duty to give reasons on that issue. It remained open to a claimant to challenge the decision on ordinary public-law grounds where appropriate.
4. The evidence did not establish the alleged disparate impact on west-estate residents, the asserted health risks, or material changes requiring the Secretary of State to reopen the process. Mere assertion was insufficient. The evidence did not disclose an obvious matter which should have triggered further investigation.
5. Article 3 was not engaged on the facts because the high threshold was not met. The Article 14 case was not clearly formulated or factually established. Article 8 and Article 1 of the First Protocol were engaged, but the interference was lawful and proportionate to the regeneration scheme’s purpose of improving conditions for the estate community as a whole.
6. The wider Wednesbury and failure-to-take-account grounds would also have failed, although those issues had been excluded from the surviving judicial-review grounds. Costs were ordered in favour of the interested party, subject to detailed assessment, but were not to be enforced without the court’s permission.

The judgment was a first-instance judicial-review decision. Earlier Administrative Court orders restricted the claim to the reasons challenge and the Convention-rights challenge, and excluded a claim for a quashing order.