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Rights and remedies

In 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.

Whose right?
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 stage.

Landlords 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.

Whilst 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 [2001] 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 [2007] 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.

Further guidance was recently provided by the decision of the Court of Appeal in R (on the application of Weaver) v London & Quadrant Housing Trust [2009] 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’.

In 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.

The 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 [2009] 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

The 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.

The leading case concerning the choice between ss 3 and 4 is Ghaidan v Mendoza [2004] 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.

However, 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 longer.

The author is a pupil barrister at Hardwicke Building.






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