Macleod, R (on the application of) v The Governors of the Peabody Trust

A registered social landlord is not automatically exercising a public function in every aspect of its activities. Whether a decision is amenable to judicial review depends on the cumulative circumstances of the particular housing provision and the particular tenant. Relevant factors include public funding, the relationship with local authorities, statutory regulation, the nature of the housing and the landlord’s charitable purposes.

A landlord may depart from a general mutual-exchange policy where contractual or other legal obligations prevent the proposed exchange. Poor administration in failing to explain those restrictions does not itself make the eventual decision irrational. A public sector equality duty will not justify relief where the evidence does not show that proper consideration of the duty could have affected the decision.

The claimant was an assured tenant of a flat transferred by the Crown Estate Commissioners to the defendant housing association. He sought to exchange his tenancy with a local-authority tenant in Edinburgh. The defendant refused to process the application because the claimant was not a social-housing tenant.

The claimant sought judicial review, alleging that the defendant was exercising a public function, had failed to follow its mutual-exchange policy, had failed to comply with section 149 of the Equality Act 2010, had unlawfully fettered its discretion and had acted irrationally. The central issues were whether the decision was amenable to judicial review and, if so, whether it was unlawful.

1. The claim was dismissed. The defendant was not exercising a public function in relation to the claimant’s tenancy. The principles in R (Weaver) v London and Quadrant Housing Trust [2010] 1 WLR 363 required a fact-sensitive assessment of the cumulative public character of the relevant housing provision. The decision in Weaver did not establish that every registered social landlord, or every tenancy held by such a landlord, was subject to public law.

2. The relevant circumstances did not have sufficient public flavour. The properties had been purchased with funds raised on the open market, the housing was not shown to be social housing within section 69 of the Housing and Regeneration Act 2008, there was no allocation relationship with a local authority, and the rents were not subject to the same statutory regulation as social housing generally. Peabody’s charitable status and the provision of homes for key workers were relevant but insufficient.

3. If the decision had been amenable to judicial review, the published mutual-exchange policy still had to be read with Peabody’s other policies and the parties’ contractual obligations. The claimant’s non-assignment clause did not permit a mutual exchange. The nominations agreement also restricted Peabody’s power to let a property to a person outside the agreed nomination arrangements. Those matters justified departure from the general policy.

4. The claim under section 149 of the Equality Act 2010 failed. The material available to Peabody concerning the claimant’s disability was limited and unsupported. The claimant had not shown that due regard to the equality duty could have made any difference to the decision, and relief would in any event have been refused in the court’s discretion.

5. Peabody’s failure to warn the claimant earlier of the restrictions was poor administration, recognised by its offer of compensation. It did not make the decision irrational. Any fettering arose from contractual and other legal barriers, and the decision was one reasonably open to Peabody.

The judgment was a first-instance decision on an application for judicial review. Permission had previously been granted by a single judge.