There has been a recent trend towards treating housing associations as public bodies for the purposes of judicial review and human rights defences,...
...the leading authority being R (Weaver) v London and Quadrant Housing Trust  1 WLR 363. The housing association in that case was found to be hybrid – i.e. some of its functions were those of a public body and some were private in nature. On the facts of Weaver, the termination of a social tenancy was a public function and therefore amenable to judicial review. The recent case of Macleod has emphasised that Weaver did not decide all registered social landlords are public bodies and that careful application to the facts of each individual case was necessary.
Mr Macleod made an application to Peabody for approval of a mutual exchange of his flat. Peabody refused and Mr Macleod sought to challenge their decision by bringing judicial review proceedings. Peabody defended on the basis that they were not performing a public function.
The court agreed, holding that Peabody was not performing a public function in considering the exchange. Relevant factors were:
the property which Mr Macleod occupied had been bought by Peabody with private funds;
although the property was key worker housing at reduced rent, it was not pure social housing and did not fall within the definition of such at s.69 Housing and Regeneration Act 2008;
rent for the property was not subject to the same controls as social housing; and
Peabody did not have an allocation relationship with any local authority and was not otherwise working in close harmony with a local authority to enable them to fulfil their statutory housing duty.
Overall there was insufficient “public flavour” to the whole arrangement to allow a judicial review. The key factor was the source of funding for the property. The court indicated that if public funds had been used, there would be “significant weight” to a public body submission that Peabody was an RSL with statutory powers over and above those available to private landlords. It was perfectly possible for the decisions of one housing association to be public for some tenants and private for others.
Expect many more of the same arguments as housing associations test the limits of their “public flavour”.
Helen Turnbull / 6th Jun 2016
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