Keeping on the right side of the law
01/10/09
Tim Crook, Principal Solicitor at Housing Law Services, presents the first of his regular housing law updates.
R (Weaver) v London & Quadrant Housing Trust (2009)
Unless you have been sailing the Southern Ocean for the past three months, you can't fail to have heard the buzz surrounding the decision of R (Weaver) v London & Quadrant Housing Trust. The decision, which was handed down by the Court of Appeal on 18 June 2009, has caused a certain amount of turmoil within the sector.
In summary, the Court of Appeal has upheld the High Court's earlier decision (given in 2008) and ruled that the housing management functions of registered providers of social housing will be susceptible to Judicial Review and also subject to the Human Rights Act 1998. This is because the Court has ruled that when exercising such functions, registered providers are to be considered public authorities, and public authorities are susceptible to Judicial Review and the Human Rights Act.
Which registered providers' functions are affected?
The Court's decision expressly included any decision involving allocating and terminating tenancies. However, the impact will be felt beyond these two areas. For example, a tenant may challenge a registered provider's decision to seek an Anti-social Behaviour Order or Injunction on the basis that such action is a breach of a European Convention right or that the decision to take such action was unfair.
Preventive action
As registered providers, you can and should take practical steps to prevent such challenges being raised and/or to minimise the prospects of success of any actions mounted by tenants. As always, staff should maintain clear and comprehensive records of all contact with the tenant or any third parties at all times, but additional measures include ensuring that:
- detailed records of all decisions are kept
- any decision to issue court proceedings against a tenant has been ratified by more than one employee
- a thorough investigation of all anti-social behaviour allegations is carried out before action is taken
- possession action continues to be a last resort, alternatives to such action are fully considered and the outcome of that consideration recorded
- the Rent Arrears Pre-action Protocol is fully complied with in rent arrears cases.
This isn't an exhaustive list but sets out some of the practical measures that your organisation can and should take in response to the Weaver decision.
If a tenant makes a complaint that your organisation has breached his or her Convention rights, you should seek legal advice as quickly as possible. Early response and intervention by lawyers can avert such challenges.
What next?
London & Quadrant has been granted permission to appeal to the House of Lords (now the Supreme Court as from 1 October 2009). Given that one of the three judges who decided the case in the Court of Appeal (Lord Rix) did not rule that the termination of a tenancy by a registered provider of social housing was a public act, there is, at least, cause for hope that the Supreme Court will overturn the decision of the Court of Appeal. Watch this space!
You may also be interested in the Social Housing Law Association's Fourth Annual Conference on 27 November 2009 at The Hatton, London.
Full conference details on the Social Housing Law Association's website