Donoghue v Poplar Housing & Regeneration Community Association Ltd & Anor

Facts

Poplar Housing and Regeneration Community Association was a registered social landlord created by Tower Hamlets Council to take over the council's housing stock. Ms Donoghue had been homeless with her children and was placed by the council, in discharge of its statutory duty to the homeless, in a flat now owned by Poplar. She held an assured shorthold tenancy and fell into arrears. Poplar served notice and sought possession, relying on the mandatory ground in the Housing Act 1988 which requires the court to order possession once the notice has been properly given at the end of the term.

History

A county court made an order for possession against Ms Donoghue, and she appealed to the Court of Appeal, relying on the Human Rights Act 1998.

Issue

Whether Poplar was a public authority within section 6 of the Human Rights Act 1998; whether the mandatory possession ground breached the tenant's right to respect for her home under Article 8; and whether section 3 of the Act could or should be used to read the Housing Act 1988 compatibly.

Held

Appeal dismissed. Poplar was a public authority, at least in respect of its function of providing housing in discharge of the council's statutory duties, but the mandatory possession ground was a proportionate interference with Article 8 and no breach was shown, so the possession order stood.

Ratio

• Whether a body is a public authority under section 6(3)(b) of the Human Rights Act depends on the nature of the function being performed; a housing association which has taken over a council's housing stock and in doing so performs the council's statutory function of housing the homeless, with close links to the council, carries out a public function in that respect.
• The mandatory ground for possession at the end of an assured shorthold tenancy is a proportionate means of balancing the interest of landlords and tenants and so is compatible with Article 8.

The judgments

Key reasoning

• Poplar had been established to take over the council's stock, had council nominees on its board, and was performing the council's own statutory function of housing the homeless; the fact that it was a private company and that the relationship was formally that of landlord and tenant did not prevent the function from being public.
• Interference with the tenant's home by a possession order was in accordance with the law and pursued the legitimate aim of protecting the rights of landlords to recover possession; Parliament had struck a balance in providing a mandatory ground with notice, and that balance was within the margin of appreciation.

Obiter

• Section 3 of the Human Rights Act requires a court to interpret legislation compatibly with Convention rights only where the language of the statute can bear that meaning; it does not permit the court to rewrite legislation, and where compatibility cannot be achieved the proper course is a declaration of incompatibility.

Where it fits in the module

On the FHS Administrative Law list under when private bodies are subject to judicial review. Poplar shows the court asking whether a private body is performing a public function, and relying on a mix of factors, including close institutional links with a public authority and the carrying out of a statutory duty, a debate that runs parallel to the question under Datafin. Later decisions took a narrower view of public function, including Aston Cantlow PCC v Wallbank [2003] UKHL 37 on core public authorities, YL v Birmingham City Council [2007] UKHL 27, and R (Weaver) v London and Quadrant Housing Trust [2009] EWCA Civ 587, so candidates should ask whether the Poplar approach survives and what principle should decide which bodies are public.

Criticisms

• The multi-factor approach gives no clear criterion of public function, so the status of housing associations and other privatised providers is unpredictable, and the reliance on the closeness of the relationship with the council makes the answer depend on corporate structure.
• Treating the body as public only because it performs the council's duties ties its status to the details of the transfer, although the tenant's protection under the Convention should not depend on the form in which the state chose to deliver the service; later cases took a narrower approach and left the line unstable.
• Finding the mandatory ground proportionate without any individual assessment of the tenant's circumstances is hard to reconcile with the later insistence of the European Court of Human Rights that loss of a home requires an independent determination of proportionality, as in McCann v United Kingdom.