Housing lawBy Andrew Dymond, barrister, Arden Chambers, London

The role of RSCs under Human Rights Act 1998There has been considerable speculation as to whether registered social landlords (RSLs) are public authorities for the purposes of the Human Rights Act 1998.

The Court of Appeal has now considered the issue in Poplar HARCA v Donoghue [2001] EWCA Civ 595.

The judgment emphasises that to ask the simple question whether RSLs are public authorities is to misunderstand section 6 of the 1998 Act.

Only courts or tribunals are public authorities for all purposes.

In all other cases, the issue is whether the body is exercising a function of a public nature.

The defendant applied to a local authority for assistance as a homeless person.

It provided her with interim accommodation in one of its own properties.

This was subsequently transferred to Poplar as part of a large scale voluntary transfer.

Consequently, her tenancy became an assured shorthold tenancy.

The authority decided that the defendant was intentionally homeless.

Poplar then brought possession proceedings based on a notice served under section 21(4) of the Housing Act 1988.

Accordingly, the county court was obliged to grant possession.

The defendant contended that section 21(4) was incompatible with article 8 (right to respect for private and family life and the home).

In essence, it was argued that a requirement of 'reasonableness' should be imported into section 21(4).

The court rejected this argument, noting the implications of introducing such a discretion.

Recognising that housing policy was an area for parliament rather than the courts, the court held that section 21(4) was compatible with article 8.

Strictly, it was unnecessary to consider whether Poplar was acting as a public authority.

Nonetheless, the court heard extensive evidence about the role of RSLs and provided guidance as to when a body may be said to be exercising public functions.

While accepting that section 6 of the 1998 Act requires a generous interpretation of who is a public authority, the court acknowledged that the test was inspired by the approach developed by the courts in identifying the bodies and activities which are subject to judicial review.The letting of residential accommodation is not in itself a public function, irrespective of the section of society for whom the accommodation is provided.

The fact that a body performs an activity which would otherwise be performed by a public body acting under a statutory duty does not mean that it is exercising a public function.

Furthermore, a RSL's status as a charity or other non-profit making organisation does not make it a public authority, nor does its regulation by the Housing Corporation.

In the end, recognising that this was a borderline case, the court held that in all the circumstances of the case, the role of Poplar 'was so closely assimilated to that of Tower Hamlets that it was performing public and not private functions'.

The court emphasised that this did not mean that all Poplar's functions were public and the limited ambit of the decision is emphasised by the fact that the court expressly stated that they were not even deciding that the position would be the same if the defendant had been a secure tenant.

The test as formulated in section 6 means that whether an RSL is acting as a public body is necessarily a question of fact in each case.

This decision does not (and could not) conclude the issue but provides the starting point for further litigation.