The issue in the case of R (on the application of Macleod) v the Peabody Trust [2016] EWHC 737 is a familiar one: is a housing association to be treated as a “public body”. If it is, can one of its decisions be challenged by judicial review?
The applicant, Mr Macleod, became a tenant of the Peabody Trust, a well-known housing association. This followed the sale of his home, and those of other tenants, by the Crown Commissioners to Peabody. The terms of the sale agreement included an obligation on the part of Peabody to house certain key workers and charge them rents at below market rents.
Mr Macleod wanted to move and after making enquiries he decided to exchange his tenancy with a council tenant who lived in Edinburgh. Although he was treated sympathetically when he first approached Peabody, it later informed him that as he was not a “social housing tenant” he did not have the right of mutual exchange.
He sought to challenge this decision by judicial review. In doing this he also raised issues about his disability.
To a significant extent this issue appeared to have been settled by the decision of the Court of Appeal in R (on the application of Weaver) v London and Quadrant Housing Trust [2010] 1 WLR 363. The trust was categorised as a “hybrid” authority: some of its functions were public, but others were in their nature private. Several factors led the court to this conclusion: receipt of public funds, co-operating with local housing authorities when allocating housing, the provision of subsidised housing, its charitable objectives, and the fact that the majority of its tenants have statutory protection. As a public body its decision on an eviction could be challenged by judicial review. However, public law principles do not apply to those of its tenants who are not housed in “social housing”. It followed that not all of its tenants can claim the benefit of judicial review.
This uncertainty over which housing association tenants can challenge their landlord’s decisions by judicial review is illustrated by the Macleod decision. William Davis J was “not satisfied that Peabody was exercising a public function” [20] in relation to Mr Macleod’s tenancy. He reached this conclusion for several reasons. Peabody purchased the properties without public subsidy; even though the properties were not let at a full market rent, they are not “social housing”; there is no allocation relationship with a local authority and the rents charged for the transferred properties are not subject to the same level of statutory regulation as social housing in general.
Even if Peabody’s decision could be challenged, the court concluded that the challenge would not succeed. There was no right of mutual exchange in the tenancy agreement. The evidence that Peabody failed to take account of his disability was weak. There was no substance to his submission that Peabody had either fettered its discretion or that it had acted irrationally.
James Driscoll is a solicitor and a writer
