PRPSHs and judicial review
Judicial review can be used to challenge private registered provider of social housing (PRPSH) decisions of public nature.
Judicial review is a public law challenge to the lawfulness of decisions of public bodies, in the exercise of their public functions.
The Court of Appeal held that a PRPSH is a hybrid authority, which exercises a mixture of public and private functions. In each case it will be necessary to determine whether a particular act (for example terminating a tenancy) is of a private or public nature.
Not all acts concerned with carrying out a public function will be public acts; it is important to focus on the context in which each particular act occurs. The Court considered a number of features that gave a public character to the housing functions of a PRPSH:
significant reliance on public finance enabling the PRPSH to achieve its objectives
close co-operation with the local authority enabling the local authority to meet its statutory duties and objectives
freedom to allocate properties restricted by the allocation agreements with the local authority and by the statutory duty to co-operate
the provision of subsidised housing, as opposed to its own housing
the charitable objectives of the PRPSH
The Court made it clear that none of the above features in isolation would be sufficient to make a PRPSH's provision of housing a public function; it will be necessary to look at their cumulative effect.
Within the context of a PRPSH's hybrid functions, the Court held that the act of terminating a tenancy constituted a public act, susceptible to challenge on conventional public law grounds.
In other cases, the courts also held that a PRPSH created by a local authority to take over its housing stock acted as a public body, and that deciding whether to consent to an exchange of social housing was part of a PRPSH's public functions, although not when the PRPSH had purchased the housing stock with private funds and offered non-pure social housing at intermediate rent levels.
A public body is susceptible to judicial review on conventional public law grounds. It should also be noted that section 6(1) of the Human Rights Act 1998 makes it unlawful for a public body to act in a way which is incompatible with the European Convention of Human Rights, so breaches of the Convention are challengeable by judicial review.
In cases where the landlord does not need to prove a ground for possession or the claim is taken on mandatory grounds and the court has no discretion to consider the reasonableness of making an order, tenants of PRPSHs can ask the county court to adjourn proceedings to enable an application to be made for judicial review on public law grounds. Wherever appropriate, it is advisable to refer the tenant to a solicitor as soon as possible before the date of the court hearing.
It had been thought that a defence on conventional public law grounds could be raised by tenants of PRPSHs in the county court, as opposed to bringing a claim for judicial review, which would allow the court to quash the notice of seeking possession or to declare the bringing of possession proceedings to be unlawful. However, the Court of Appeal has ruled this defence is not available to introductory and demoted tenants as where the correct possession procedure as set out in the statute has been followed, the county court does not have the power to refuse a possession order.
This would also seem to be the situation for tenants of PRPSHs (in the situations set out in the bullets below) as the statutory scheme would also seem to preclude them from raising a public law defence in the county court. This remains an area of uncertainty.
Instances of where an ajournment pending an application for judicial review could be considered include where the tenant has an:
assured shorthold tenancy and the PRPSH brings possession proceedings under section 21, or
assured tenancy and possession is being sought under ground 8 (the mandatory ground where there are more than eight weeks/two months' arrears at date of service of the notice and at the date of the hearing
Last updated: 23 March 2021
R (on the application of Weaver) v London & Quadrant Housing Trust and Equality and Human Rights Commission (Intervenor)  EWCA 587.
Poplar Housing and Regeneration Community Association Ltd v Donoghue  EWCA Civ 595.
R (on the applications of (1) McIntyre (2) McIntyre v Gentoo Group Ltd  EWHC 5 (Admin).
R (on the application of Macleod) v The Governors of the Peabody Trust  EWHC 737 (Admin).
following Doherty v Birmingham CC  UKHL 57; Kay v Lambeth LBC  UKHL 10.
Mullen v Salford MBC; Powell v Hounslow LBC; Hall v Leeds CC; Frisby v Birmingham CC; Manchester CC v Mushin and Secretary of State for Communities and Local Government (Intervenor) EWCA Civ 336.
ss. 9(5)/(6) and 21(1) Housing Act 1988.