The latest decision on whether or not a registered provider (RP)
should be subject to judicial review, Macleod v The Governors
of the Peabody Trust, sits in harmony with the most
significant case on this issue, Weaver v London & Quadrant
Housing Trust but reaches a different conclusion on its facts.
In this instance Peabody was not amenable to a judicial review and
by extension not susceptible to a human rights challenge.
Weaver did not make a blanket decision that all
RPs are public bodies in all circumstances of the
provision of housing, rather, a distinction was made for the
provision of social housing. The court highlighted the following
factors which, when considered cumulatively, establish sufficient
public flavour to bring the provision of housing within the concept
of a public function, ie. social housing:
a significant reliance on public
finance through grants
working closely with local government
assisting it to achieve the authority's statutory duties and
the provision of subsidised housing
rather than the provision of housing itself;
acting in the public interest with
subject to intrusive regulation on
allocation and management
Mr Macleod was the assured tenant of the Crown Estate
Commissioners (CEC). The accommodation was reserved for "key
workers", being those employed in the public sector. The
rental charge was not a social housing rent but an intermediate sum
at no more than 60% of market rent.
It was a term of the tenancy relating to assignment that Mr
Macleod would not assign, sublet or part with possession of whole
of any part of the premises.
In February 2011 CEC transferred a number of
properties to Peabody. The transfer was subject to a Nominations
Agreement which restricted Peabody to letting the properties to key
workers at a sub-market rent and to accept nomination rights from
CEC on any vacant property to provide
accommodation to key workers.
In July 2015 Mr Macleod applied to exchange his tenancy with a
tenant of another landlord in Edinburgh. Peabody declined the
application on the basis that Mr Macleod was not a social tenant
and had no contractual entitlement to a mutual exchange.
Mr Macleod sought judicial review of Peabody's decision in
declining his application. Among other things Mr Macleod was
required to show that Peabody was exercising a public function when
it refused to approve the mutual exchange and that the decision
itself was not a private law decision. The issue then, was whether
Mr Macleod occupied social housing.
Mr Macleod argued that:
as CEC was and is a
public body, Peabody was in the same position as any
RP which takes a large-scale transfer of public
Peabody is regulated as private
registered provider of social housing and has statutory powers over
and above the powers available to private landlords;
Peabody received state subsidy by way
of grants and to separate the properties transferred from
CEC is to ignore the realities of the
Peabody has a charitable status.
The court rejected the above arguments and in applying the
principals in Weaver, found that the cumulative effect of
the following factors did not have the sufficiency of public
flavour for social housing
Peabody purchased the properties from
CEC using funds raised on the open market, not
Although the properties were not at
full market rent, the provision of below market rent properties for
key workers does not fall within the definition of social housing
in the Housing and Regeneration Act 2008;
Peabody had no allocation
relationship with any local authority and was not assisting local
government in carryout its public functions;
Rents for the properties transferred
from CEC are not subject to the same level of
statutory regulation as social housing in general.
Given the finding in Weaver that not all tenants of an
RP are social housing tenants and will not have
human rights protection this decision is not surprising. However,
it does highlight the permeations of circumstances where an
RP may or may not be acting as a public body and
reinforces the position that this issue is fact specific. Tenants
whose landlords are RPs but are not in social
housing may now more often fall at the first hurdle.
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