15.12R (Macleod) v Peabody Trust Governors [2016] EWHC 737 (Admin), [2016] HLR 27
The housing association’s decision not to permit an assignment was not amenable to judicial review given that the dwelling was not social housing within the statutory definition and had been acquired using private funds
Facts: Peabody, a housing association, purchased the reversion to Mr Macleod’s flat, and other flats, from the Crown Estate Commissioners, having issued bonds to finance the purchase. The transfer was subject to the condition that Peabody would only let the dwellings to ‘key workers’. Mr Macleod sought a judicial review of Peabody’s decision that he could only assign his flat to a ‘key worker’. His tenancy agreement in fact contained a total prohibition on assignment.
Judgment: William Davis J held that, on the particular facts, Peabody had not been exercising a public function in relation to Mr Macleod so as to be amenable to judicial review:
20. It is important to note that the general principles enunciated by Lord Justice Elias in Weaver have to be applied to the facts of each particular case. Weaver did not decide that all RSLs are public bodies. On the facts of this case I am not satisfied that Peabody was exercising a public function in relation to the tenancy of Mr Macleod. I take into account the following 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: see section 69.
•Unlike the RSL 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 are not subject to the same level of statutory regulation as social housing in general.
21. True it is that some public function was fulfilled by the provision of homes for key workers in London. However, in my judgment the cumulative effect of the various factors in the circumstances of this case does not have the sufficiency of public flavour which Lord Justice Elias found in Weaver. In Weaver Lord Justice Elias noted that it will not follow that all tenants of an RSL will be able to claim the benefit of a public law remedy just because the RSL is exercising a public function in relation to some or even most of its tenants.
22. The arguments raised on behalf of Mr Macleod which run contrary to my conclusion — and the reasons I reject them — are as follows:
•Because CEC was and is a public body, Peabody was in the same position as any RSL which takes a large-scale transfer of public housing stock.
•This proposition depends upon a conclusion that CEC was a public body and that the properties of which Mr Macleod’s was one consisted of public housing stock. For the reasons already given I am not satisfied that those factors are made out on the evidence before me.
•Peabody is regulated as a private registered provider of social housing and has statutory powers over and above the powers available to private landlords.
•This proposition would carry significant weight in relation to Peabody’s general stock. The properties transferred from CEC fall into a different category.
•Peabody receives state subsidy by way of grants and to separate the properties transferred from CEC is to ignore the realities of the situation.
•Such separation is not unrealistic for the reasons already given. Lord Justice Elias in Weaver did not reject the notion of different considerations applying to different parts of the housing stock let by a provider.
•Peabody has charitable status.
•This is a matter to take into account but it does not of itself signify that Peabody is a public body in relation to the properties transferred from CEC.