Is this landlord a public body / carrying out a public function?
 EWCA Civ 587
The High Court held that the claimant, a registered social landlord, was a public authority within the meaning of the Human Rights Act 1998, so that its decisions were open to judicial review and subject to the HRA; but dismissed the tenant's challenge to the claimant's decision to serve a notice seeking possession on Ground 8. In the CA the decision that the housing association was a body susceptible to the HRA was upheld but on slightly different grounds.
The claim was for possession based on rent arrears which exceeded eight weeks. The policy of the landlord was to use Ground 8, the mandatory ground for possession in respect of assured tenancies where there are at least eight weeks rent in arrears at the date of the notice seeking possession and at the date of the hearing. This case was an application for judicial review by the tenant seeking to challenge the landlord's decision to serve the notice. It failed in the High Court on the merits. There was then an appeal to the CA, which considered only the issue of the applicability of the HRA.
The High Court held that the allocation and management of housing stock, including the service of a notice of seeking possession carried out by the landlord were functions of a public nature, so that in relation to those functions the landlord was to be regarded as a "public authority" within the meaning of s6(3)(b) of the Human Rights Act 1998 (paras 55 to 63). In principle therefore the decision to serve a notice could be challenged by way of judicial review on conventional public law grounds (para 64).
The CA approached the matter slightly differently. Whether or not a housing association was susceptible to the Human Rights Act 1998 was to be determined by reference to whether a) the landlord was a hybrid authority carrying out some public functions and b) whether the specific act complained of was a private or a public act. Elias LJ at para 28:
- "Once it is determined that the body concerned is a hybrid authority – in other words that it exercises functions at least some of which are of a public nature – the only relevant question is whether the act in issue is private."
There are a number of facts (mostly set out at paragraphs 35 and 36 of the Judgment) from which conclusions can be drawn in each case as to whether the body is a hybrid authority. These will be fact sensitive in each case.
Once it is determined that it is a hybrid authority, then a further set of factors need to be considered in order to determine whether the specific act complained of is a private one. Elias at para 41:
- "First, the source of the power will be a relevant factor in determining whether the act in question is in the nature of a private act or not. Second, that will not be decisive, however, since the nature of the activities in issue in the proceedings is also important. This leads on to the third and related proposition, which is that the character of an act is likely to take its colour from the character of the function of which it forms part."
The following factors were relied on in order to establish that L was a hybrid authority: a significant reliance on public subsidy; that its allocation of social housing was close to and assisted the local authority’s statutory duties; the provision of subsidised housing was a governmental function; L was acting in the public interest; and the intrusive regulations governing its allocation and management.
Elias LJ then considered whether the act of terminating a tenancy was a private act. Paragraph 76:
- "In my judgment, the act of termination is so bound up with the provision of social housing that once the latter is seen, in the context of this particular body, as the exercise of a public function, then acts which are necessarily involved in the regulation of the function must also be public acts. The grant of a tenancy and its subsequent termination are part and parcel of determining who should be allowed to take advantage of this public benefit. This is not an act which is purely incidental or supplementary to the principal function, such as contracting out the cleaning of the windows of the Trust’s properties. That could readily be seen as a private function of a kind carried on by both public and private bodies. No doubt the termination of such a contract would be a private act (unless the body were a core public authority.)"
Although Elias LJ states that every case will be fact sensitive, that is hardly a recipe for dealing practically with the numerous possession claims in the county court where a tenant may challenge the decision of a housing association on human rights act grounds. In most cases the landlord is likely to be a public body; and probably in nearly all of them it is unlikely to be worth expending vast sums on having a factual dispute on the matter. The practical step will usually to be admit that the HRA applies and to argue the case on the merits.
The Supreme Court subsequently refused permission to appeal, not because it isn’t an important issue, but because this isn’t the right case. As stated above, Ms Weaver actually lost the case on the merits at first instance but the High Court held that the claimant was a public body so that the Human Rights Act applied. The appeal by the claimant to the Court of Appeal on that point was therefore an academic one and on normal principles should not have been heard. This is obviously the view of the Supreme Court:
- “The point is clearly one for the Supreme Court but this is not a suitable case on its facts. If a suitable case can be identified consideration should be given to applying for a leap-frog appeal to the Supreme Court."
Note also that in Joseph v Nettleton Road Housing Co-Operative  EWCA Civ 228 the judge at first instance decided that the landlord, a fully mutual housing co-opeartive, was not a public body for the purposes of the Human Rights Act 1988. The point was not pursued on appeal.