London & Quadrant Housing Trust (Appellant) v R (on the application of Weaver) (Respondent) & Equality & Human Rights Commission (Intervenor) [2009] EWCA Civ 587

The Court of Appeal were asked to consider whether the appellant housing trust was subject to the Human Rights Act 1998 when seeking to terminate a tenancy. W had been served with an order for possession on the basis of rent arrears. She sought to challenge this, by way of judicial review, as a breach of her human rights. The Court of Appeal, highlighting that the Appellant had already conceded that it was a hybrid public authority because of the nature of the functions it carried out, focused on whether the termination of a tenancy could be a private act and therefore not subject to the Human Rights Act 1998 by virtue of s.6(5). The Court empathised that to determine the nature of an act one must consider it within the context it was performed and look at both the source and nature of the activity before determining whether it was a private or public act. As a starting point it suggested considering the extent to which in carrying out the activity the body was providing a public service, or was publicly funded, exercising statutory powers, or taking the place of central government or local authorities. In this instance the housing trust relied very heavily on public money to fund its activities and worked closely with the local authority in respect of the allocation of its housing stock. The Court of Appeal made clear that it believed the provision of social housing was a government function and highlighted the regulations which bound the Trust were designed to ensure that the government’s objectives towards vulnerable groups were met. This combined with the charitable status of the appellant meant that it could not be said to be acting in pursuit of a purely private, commercial arrangement and was in fact providing a public service because its functions were of a public nature and so would be subject to the Human Rights Act 1998 [the ‘1998 Act’].

The Court recognised that a hybrid public authority could carry out both public and private acts and that, in seeking to terminate the tenancy, the Trust would be seeking to exercise a private law power contained with the contractual arrangement of the tenancy agreement. However, the Court found that the act of terminating a tenancy was part of the process of regulating the public law functions of the Trust, namely the allocation of social housing and so would also be subject to the 1998 Act. Furthermore it made clear that any determination that the Trust was exercising a private act because the source of the power it sought to exercise was contractual and therefore it should benefit from the exemption set out in s.6(5) of the 1998 Act would undermine the protections Parliament had intended for those people assisted by hybrid authorities, such as to make identifying such bodies as hybrid rather than private organisations almost pointless.

The Court of Appeal also made clear that the protections offered by the 1998 Act extended to all those tenants accommodated by the Trust in social housing and not just those in properties purchased with state grants, though it also conceded that not all housing trusts would be in the same position. As such the public status of every registered social landlord would have to be determined on the facts of each case.

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