a previous article (see ‘A Home for Rights’, Michaelmas
issue, October 2009) I addressed the issue of which human rights
provisions are most commonly engaged by housing law issues. The
next logical step is to ask who will be affected by these rights,
before then considering what powers the courts have in respect of
supplying an adequate remedy.
Practitioners are faced with an increasingly complex interrelationship
between the various public and private parties which become entangled
in housing law disputes. Determining the status of the respective
parties will often have an impact upon the type of remedy sought,
as well as the tactics pursued throughout the litigation process.
For example, whereas private sector organisations are amenable to
the Data Protection Act 1998, the public sector falls under the
ambit of the Freedom of Information Act 2000. This can provide important
avenues for determining the merits of a claim at the pre-action
can range from private and commercial landlords, to local authorities
and Registered Social Landlords (RSLs). More confusingly for practitioners,
the distinction between public and private can vary according to
the function being exercised. For instance, a public landlord will
be exercising a public function when seeking a possession order,
but a private law function when fulfilling obligations in respect
of repair or allowing the tenant ‘quiet enjoyment’ during
their tenancy. This distinction is an important one, as by virtue
of s.6 Human Rights Act 1998, public authorities will be amenable
to challenge on the grounds of violating Convention rights.
the law is relatively straightforward when dealing with functions
carried out by a public body such as a local authority, the position
with RSLs is more complex. Whether an RSL is a public duty will
depend on the nature of the RSL and the specific function being
performed. This was confirmed in Poplar Housing and Regeneration
Community Association v Donaghue  EWCA Civ 595. Lord Woolf
CJ observed at para 58 that when determining the question of public
function, s.6 ‘should be given a generous interpretation’,
which gave practitioners a wide scope for argument on this point.
Nonetheless, in YL v Birmingham City Council  UKHL 27, the
House of Lords held that Convention rights were not engaged in respect
of a private care home, even when it was acting under the aegis
of the National Assistance Act 1948. The court distinguished YL
on the grounds that it operated on a private and commercial basis
not found in Poplar.
guidance was recently provided by the decision of the Court of Appeal
in R (on the application of Weaver) v London & Quadrant Housing
Trust  EWCA Civ 587. Conceding that the defendant RSL was
a hybrid authority, the appeal focused on the question of whether
the act of terminating the tenancy was a private act or not. The
court emphasised that it was crucial to take the context of a decision
into account when determining its character. On the basis that the
defendant was working closely with the local authority in providing
social housing, and had received substantial public funding, Collins
LJ held at para 102 that ‘the act of termination is inextricably
linked to the provision of social housing as part of the Trust's
public function’. However, in his judgment at para 84, Elias
LJ sounded a note of caution, stating that, ‘it does not necessarily
follow…that every RSL providing social housing will necessarily
be in the same position as the [defendant]…[and] the determination
of the public status of a body is fact sensitive’.
November 2009, following the Court of Appeal’s decision in
Weaver, the Supreme Court refused permission to appeal, on the grounds
that although “the point is clearly one for the Supreme Court...this
is not a suitable case on its facts”. The court added that
if a suitable case could be identified, then consideration should
be given to applying for a leap-frog appeal.
importance of ascertaining the status of the parties is not just
limited to determining what type of function is being exercised
by the landlord, as the position of the tenant may also be crucial.
The recent decision of the Court of Appeal in Alexander-David v
Hammersmith and Fulham LBC  EWCA Civ 259 underlined the need
for clarity when granting tenancies. The facts of the case were
that the respondent local authority, acting in accordance with its
duty under s.193(2) Housing Act 1996, had granted what purported
to be a lease to the appellant, who was 16 at the time. However,
as all first year land law students would have been able to tell
Hammersmith and Fulham LBC, s.1(6) of the Law of Property Act 1925
states that a minor is not capable of holding a legal estate in
land. Therefore by virtue of Sch.1 para.1(1) of the Trusts of Land
and Appointment of Trustees Act 1996, the written notice purporting
to create a lease, in fact ‘operate[d] as a declaration that
the land is held in trust for the minor’. The difficulty arose
when the local authority served notice to quit on the appellant,
who had been the subject of a number of complaints from other residents.
By the time the case reached the Court of Appeal, the court held
that the local authority could not lawfully terminate the lease,
and thereby destroy the subject matter of the trust. By failing
to adhere to basic legal principles, Hammersmith and Fulham LBC
created a tenancy which they were unable to terminate. Whilst this
situation is clearly of limited application, and will naturally
expire once the tenant attains majority, Alexander-David provides
an object lesson for local authorities looking to properly discharge
their obligations under the statutory homelessness provisions.
In Choosing your remedy wisely
two main powers granted to the courts under the HRA are contained
in ss 3 and 4. Section 3(1) requires the court to interpret legislation
'so far as it is possible…in a way which is compatible with
the Convention rights'. If the statute in question is not amenable
to this interpretative exercise, and the court is satisfied that
the provision is incompatible with a Convention right, then it can
consider invoking its power under s.4 to make a declaration of incompatibility.
Before doing so, the court must be of the opinion, by virtue of
s.4(4)(b), that '(disregarding any possibility of revocation) the
primary legislation concerned prevents removal of the incompatibility'.
But courts have been slow to explain their reasoning behind choosing
between the remedial and declaratory approaches.
leading case concerning the choice between ss 3 and 4 is Ghaidan
v Mendoza  UKHL 30. The case dealt with an application for
succession to a statutory tenancy under the Rent Act 1977 by the
surviving partner in a homosexual relationship. This case concerned
two questions. Firstly, whether Schedule 1 paragraph 2 of the Rent
Act 1977 violated Art 14 when read in conjunction with Art 8. Secondly,
if answered in the affirmative, how should para 2 be interpreted
in light of the HRA? Insofar as it is relevant, Para.2 provides
that ‘the surviving spouse of the original tenant, if residing
in the dwelling-house immediately before the death of the original
tenant, shall after the death be the statutory tenant’. By
a majority of four to one, the House of Lords chose a remedial approach,
deciding that it was possible to read the definition of ‘spouse’
to include same-sex couples, allowing Mr Mendoza to succeed his
partner as a statutory tenant.
questions remain about the limits of the use of s.3 to ensure Convention
compliance. Lord Nicholls stressed this point, noting at para 33
that any interpretation must be compatible with ‘the underlying
thrust’ of the legislation, and not require the courts to
undertake ‘legislative deliberation’. Lord Roger phrased
his approach in similar language, noting at para 110 that courts
were not able to ‘change the substance of a provision entirely’.
Much effort has gone into reading the tea leaves of the Ghaidan
decision, but it is far from clear that any set test has been established
to help the courts choose between declaratory and remedial action.
Indeed it may not be practical or desirable to formulate such a
rubric, as Dr Aileen Kavanagh has argued, observing that ‘such
a test is impossible to devise, or, if attempted, would be so abstract
that it would merely provide some general guidelines or indications
of the factors relevant to that determination’. But this cautious
attitude surely represents a poverty of aspiration – the Ghaidan
decision falls significantly short of providing the certainty sought
after by practitioners and would benefit from more systematic guidance.
Until the appellate courts revisit this question, practitioners
should proceed on the basis that courts will try to use s.3 wherever
possible instead of s.4, with consideration made as to which route
produces the most equitable result.
Whilst the courts are still a long way from providing absolute certainty
when it comes to determining rights arguments, the recent decisions
by the Court of Appeal in Weaver and House of Lords in Ghaidan have
provided some clarification. Nonetheless, the invitation given by
the Supreme Court to find a case more suitable for determination
than Weaver, should keep practitioners guessing for a little while
author is a pupil barrister at Hardwicke Building.