You can’t judicially review all housing association decisions

01 Jan 2018

Housing, Property, Public Law and Judicial Review

Since the case of Weaver a number of public law and human rights challenges against housing associations have been brought.  But few if any reported cases have, until now, found that a housing association was acting as a private body and hence was not susceptible to judicial review (and by implication not susceptible to a human rights challenge).

In R(Macleod) v Peabody Trust Mr Justice William Davis found that when declining to allow a mutual exchange the Peabody housing association had not been acting as a public body.  He came to this conclusion in respect of a portfolio of properties that Peabody had bought from the Crown Estate Commissioners (‘CEC’) in 2011.  The Judge reached this conclusion having regard to these factors:

Peabody purchased the properties from CEC using funds raised on the open market, not via any public subsidy or grant.Although the properties were not let a full market rent, it is not clear that they were pure social housing. The key workers for whom the property was reserved included those with a family income of up to £60,000 per annum. The commercial housing market in London adequately serves the needs of those workers. Very many workers in occupations not covered by the nomination agreement relating to the CEC properties are served by the open market. The provision of below market rent properties for such workers does not fall within the definition of social housing in the Housing and Regeneration Act 2008, s69Unlike the housing association in Weaver Peabody had no allocation relationship with any local authority. It was not acting in close harmony with a local authority to assist the local authority to fulfil its statutory duty.Rents for the properties transferred from CEC (mostly intermediate rents with some market rents) are not subject to the same level of statutory regulation as social housing in general.  (§20)

In reaching his conclusion the Judge reiterated the point made in Weaver that not all housing association functions are public functions.

Furthermore, the Judge found that even if Peabody had been exercising a public function:

It had been entitled to depart from its own mutual exchange policy having regard to its tenancy agreement that did not permit a mutual exchange (§§23-24).Relief under the public sector equality duty of s149 of the Equality Act 2010 would be refused having regard to the claimant’s evidence that consisted largely of assertions about his mental health unsupported by medical or other evidence (§25).It made a decision that it was open to a reasonable decision maker to make (§26).