In this article...
The case of Weaver v London & Quadrant Housing Trust, which has been confirmed by the Court of Appeal, has led to much discussion about the “public body” status of registered providers. In this article we have tried to answer some of the questions which our RP clients have been asking over the last few weeks.
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The High Court’s decision that the Human Rights Act 1998 applies to Registered Providers (“RPs”) has now been confirmed by the Court of Appeal and it is, for the moment, clear that Registered Providers are public authorities for the purposes of the Human Rights Act 1998 and will be susceptible to judicial review.
There has been much discussion already about where this will lead. Assuming the House of Lords does not overturn the ruling (following London & Quadrant’s announcement that it intends to appeal) there is a risk that the status of “public body” will expand so that housing associations also become subject to the Freedom of Information Act and other public law requirements. More importantly, the decision could limit the ability of housing associations to raise finance from the private sector. We will have to wait and see. In the meantime, however, it is not all bad news. Whilst defending claims may be time consuming and costly, in our experience the chances of most of those claims succeeding are slim and many claims can be knocked out at the early stages provided the principles of fairness, reasonableness and proportionality are followed. In this article we have tried to answer some of the questions which our RP clients have been asking over the last few weeks and in doing so we have combined our experience of acting for social landlords with our experience in defending a substantial number of public sector clients in Judicial Review claims over the past 10 years.
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The Court found that the Human Rights Act applies to an RP’s “housing management functions”. This expressly includes the allocation and termination of a tenancy, and is likely to include everything in between. If a decision is taken by an RP which the tenant considers to be unfair, irrational, disproportionate or a breach of the European Convention on Human Rights, then the tenant may issue a claim for the decision to be reviewed or for a finding that a breach has occurred. Alternatively, a tenant may defend the landlord’s claim for possession, ASBO, or injunction on the basis that those proceedings are a breach of a Convention right, or the decision to bring the proceedings was unfair. It is therefore important to note that whilst claims for possession are likely to form the greater area of challenge, any housing management decision can now be subject to a human rights or judicial review challenge.
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We advise our RP clients regularly on housing management policies and our best practice principles are likely to be sufficient to demonstrate that sufficient regard has been had to the tenant’s Convention rights. We recommend the following as a starting point:
Formulate and follow a detailed and clear escalation policy which seeks to avoid the issue of possession proceedings where possible. For rent arrears, compliance with the Rent Arrears Pre-Action Protocol is likely to be sufficient. In Anti-Social Behaviour cases it will be necessary to show that you have thoroughly investigated the complaint and have spoken to all witnesses, victims and perpetrators;
Keep detailed records of all correspondence, telephone calls and meetings with the tenant and any third parties;
Record that you have considered whether the Disability Discrimination Act or the Mental Capacity Act apply, the outcome and whether your actions will be adjusted in any way to take account of these issues.
More than one staff member should agree the decision to issue proceedings, to avoid allegations that a particular employee is biased towards the tenant or has acted unfairly.
Alternatives to possession should be considered and employed where possible. If alternatives are dismissed then reasons must be shown.
Employ a policy of transparency and openness with regard to disclosure of tenancy files (whilst complying with the Data Protection Act).
The RP must be able to demonstrate that the decision it has taken is reasonable, rational, proportionate and consistent with the obligations of a public body. It is worth noting that authorities must have regard not just to the individual’s human rights, but also to the rights of the individual’s neighbours and the wider community. A tenant who is suffering as a result of his neighbour’s anti-social behaviour is just as entitled to bring a claim for breach of his rights under Article 8 as a tenant who is being evicted. Therefore “going soft” on anti-social behaviour is not an option: the association must consider the convention rights of the alleged perpetrator and the victims of ASB and seek to achieve a balance between them, which in many cases will be to issue possession proceedings. Provided this has been done, a court is unlikely to back a claim for judicial review or breach of Convention rights brought by a tenant.
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When a complaint is raised or a claim is intimated, legal advice should be sought at the earliest opportunity. Provided the files are in order and the above principles have been complied with there is no reason why the tenancy file should not be disclosed to the tenant or his/her lawyer (bearing in mind the need to protect third party confidentiality). Hopefully the files will speak for themselves as to the legality of the procedure which has been followed. If the tenant persists with the claim the RP is entitled to know exactly which part of its decision making process is being criticised and in what manner. It should then seek legal advice on the merits of the tenant’s case. Several methods can be employed at this stage to discourage potential claimants, such as the threat of the association’s legal costs being paid by the tenant or the Legal Services Commission should they initiate a claim which is later unsuccessful. In addition, if the association is able to demonstrate sufficiently that its decision is likely to be upheld by the court, it is less likely that public funding will be granted for a claim.
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It is worth remembering that whilst the court found that London & Quadrant was obliged to respect Ms Weaver’s rights under Article 8, it also found that no breach of those rights had occurred. In fact the court said that the practical effect of extending the Human Rights Act to housing associations must be very limited. This is because most claims levelled at housing associations by tenants are likely to be in relation to Article 8 (right to respect for private and family life, the home and correspondence) or Protocol 1, Article 1 (the right to peaceful enjoyment of property). Both of these rights are “qualified rights”. This means that interference with the right by a public authority is permitted in limited circumstances.
Firstly, the interference must have its basis in law (i.e. made under a valid ground for possession); it must also be in pursuit of a legitimate aim such as the protection of public order, health or the prevention of crime. Thirdly (and most importantly) it must be necessary in a democratic society and proportionate to the aim being pursued.
London & Quadrant succeeded on the facts because it was able to demonstrate that it had tried several times without success to solve the problem of Mrs Weaver’s rent arrears and therefore it was necessary and proportionate to issue possession proceedings. Many lawyers considered London & Quadrant to be on shaky ground here, given that it had issued proceedings under the mandatory rent arrears ground when the discretionary ground was available. The court, however, found that Mrs Weaver’s rights had been sufficiently protected and there was no obligation to use the discretionary ground first. It should be noted that this is the second high profile case in which a Ground 8 claim has succeeded, the first being Richardson v Midland Heart Ltd (2008), despite Housing Corporation guidance that it should be used only as a weapon of last resort.
Any claimant who wishes to challenge to the decision making process of an RP via judicial review must seek permission from the court to bring their claim. The applicant must then prove that the decision they complain of has been made unreasonably, illegally (i.e. the association has gone beyond its powers), or that the association has failed to follow proper procedure. The court has the power to quash the original decision and order the matter to be looked at afresh. Specific rules must be followed and there is a time limit of 3 months for applications to be made. We have one of the leading judicial review teams in the country that regularly advises local authorities, NHS Trusts, the Local Government Ombudsman and the Commission for Social Care and Inspection. We have a formidable track record of knocking out judicial review applications at the permission stage and would be happy to assist with any judicial review queries you might have.
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