TERESA DONOGHUE v POPLAR HOUSING AND REGENERATION COMMUNITY ASSOCIATION LIMITED [2001] EWCA Civ 595

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOW COUNTY COURT
[2001] EWCA Civ 595Case No Case No: 2000/3758Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Friday 27th April 2001
Between
TERESA DONOGHUEAppellantPOPLAR HOUSING AND REGENERATION COMMUNITY ASSOCIATION LIMITEDRespondentTHE SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONSInterested Party
Before
Lord Chief JusticeLord Justice MayLord Justice Jonathan ParkerMr Jan Luba QC & Miss Fiona Scolding (instructed by Messrs Breeze Benton, Bow) for the AppellantMr Ashley Underwood QC & Mr Adrian Davis (Tower Hamlets Legal Services, Isle of Dogs) appeared for the) RespondentMr Philip Sales & Miss Sarah Moore (Treasury Solicitors, London) for the Interested PartyDate 27 April 2001

LORD WOOLF CJ:

[1]The Background This is a judgment of the court on an appeal from an order of District Judge Naqvi dated 5 December 2000. The judge gave permission to appeal and directed that the appeal should be heard by the Court of Appeal pursuant to CPR 52.14 on the ground that the appeal raises important points of principle and practice.[2]The proceedings started in the Bow County Court as a straightforward claim for possession of 31 Nairn Street London E14 OLQ, of which the defendant was the tenant and which is owned by the claimant housing association ("Poplar"). On the day of the hearing, 5 December 2000, the proceedings were in the ordinary housing list. It had not been appreciated that the defendant wished to raise the issue that to make an order for possession would contravene her rights to respect for her private and family life and respect for her home contrary to Article 8 of Schedule 1, Human Rights Act 1998 ("HRA"). Fortunately, notwithstanding the novel nature of the contention, Judge Naqvi was in a position to consider the arguments which were advanced before him and give judgment straight away. We have a copy of that judgment and we commend the judge on the manner in which he dealt with the case. The Approach of the Judge[3]As he points out in his judgment, although this was not how the case was initially presented, the tenancy was an assured shorthold tenancy subject to section 21 of the Housing Act 1988 ("1988 Act"). Section 21 deals with the recovery of possession on the expiry or termination of assured shorthold tenancies. Under the section, the court's discretion not to make an order for possession is strictly limited.[4]Section 21(1) applies to orders of possession of dwelling houses after the coming to an end of an assured shorthold tenancy for a fixed term. The defendant did not have a fixed term tenancy. She had a periodic tenancy. Periodic tenancies are dealt with by section 21(4). Section 21(4) provides:
"(4) Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied (a) that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice [in writing] stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and (b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above"
(emphasis added).[5]It will be observed that section 21(4) appears to be mandatory in its terms. The court has to make an order for possession if there is a tenancy to which the subsection applies and the appropriate notice has been given. There is no requirement for the court to be satisfied that it is reasonable to make an order.[6]The first point taken on behalf of the defendant before the judge was that the notice which had been given did not comply with section 5 of the Protection from Eviction Act 1977. The judge held that section 5 only applied to purely common law notices to quit and not to statutory notices under section 21(4). No appeal has been pursued in respect of that holding.[7]The judge then turned his attention to the HRA argument. It was contended that to make an order for possession would contravene Articles 6 and 8 of the ECHR and would involve interpreting section 21(4) in a manner which is not compatible with the HRA. The judge rejected these contentions as well. He said:
"If I were to read section 21(4) in the way in which I am being enjoined to do, this would, in effect, enable people who were intentionally homeless – and that is a finding that has been already made by the local authority, which has been reviewed and has not been challenged, the final decision having been made a year ago in November 1999 – to jump the housing queue, that would impede the Human Rights of others and that is the proviso to Article [8](2) that I have got in mind, "the protection of the rights and freedoms of others"."
[8]He did, however, postpone the date on which the Order came into force for 42 days. This was the maximum extension which he was entitled to give. This was because of the defendant's exceptional personal circumstances. In addition, as already stated, the judge gave permission to the defendant to appeal directly to the Court of Appeal.[9]It is the defendant's contention that the judge should have adjourned the hearing so as to enable her to place before the court the substantial evidence, which is now before this court, in support of her appeal. The evidence is directed to the issues of whether the housing association is a public body or performing a public function and whether any breach of Article 8 could be justified on the grounds set out in Article 8(2).[10]In our judgment, where it is possible for a judge to give a decision summarily, as the judge did here, in a case where there will almost certainly be an appeal, there can be substantial advantages in adopting this approach. It can avoid expense and delay being incurred both at first instance and in the Court of Appeal. The Facts[11]The defendant moved into 31 Nairn Street in March 1998. She then had 3 children aged 3, 4 and 5. At the time of the possession proceedings she was expecting her fourth. The tenancy was granted by the London Borough of Tower Hamlets ("Tower Hamlets") pursuant to its duties as the local housing authority under section 188 of the Housing Act 1996 (the "1996 Act"). The tenancy was a weekly non-secure tenancy under Schedule 1 para 4 of the Housing Act 1985. This was recorded in the written agreement dated 25 February 1998. The property was later transferred to Poplar. Poplar was created as a housing association by Tower Hamlets in order to transfer to it a substantial proportion of the council's housing stock.[12]The defendant had been provided with housing by Tower Hamlets pending a decision as to whether she was intentionally homeless. On 16 September 1999, Tower Hamlets decided she was intentionally homeless and notified the defendant to this effect (the 1996 Act, section 184). The reason given was that the defendant had left an assured shorthold tenancy to live with her sister. A review of this decision was conducted by Tower Hamlets at the request of the defendant on the 29 November 1999. The decision was confirmed. Previously the defendant would have been able, if she wished, to challenge the decision on an application for judicial review. However, by November 1999, the procedure for challenging the decision was by way of appeal to the County Court. The defendant did not appeal.[13]In January or February 2000, Tower Hamlets issued proceedings for possession against the defendant. The authority then discovered that it was not the landlord and the proceedings were withdrawn. On 26 June 2000, Tower Hamlets wrote to the defendant informing her that she was a tenant of Poplar and was subject to an assured shorthold tenancy. On 27 June, a notice was served by Poplar under section 21(4) of the 1988 Act. On the 19 October 2000, the present proceedings were commenced. Intervention of the Secretary of State for the Environment, Transport and the Regions[14]In this case the Secretary of State for the Environment, Transport and the Regions ("the Department") intervened in the proceedings. He was able to do so because the defendant was seeking a declaration of incompatibility. The HRA and the CPR make provision for the Crown to intervene where a declaration that primary legislation is incompatible may be made by a court. Although the Department has been able to intervene, the parties suggest it is unclear what are the respective responsibilities of the parties and the court in a situation where the Crown may want to intervene.[15]The relevant provisions of the HRA, the CPR and the Practice Direction are as follows: The HRA provides:
"4(2) If the Court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. (5) In this section 'court' means - (a) the House of Lords; (b) the Judicial Committee of the Privy Council; (c) the Courts-Martial Appeal Court; (d) in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session; (e) in England and Wales or Northern Ireland, the High Court or the Court of Appeal... 5(1) Where a Court is considering whether to make a declaration of that incompatibility, the Crown is entitled to notice in accordance with rules of court. 5(2) In any case to which subsection (1) applies – (a) A Minister of the Crown (or a person nominated by him), . . . is entitled, on giving notice in accordance with rules of court, to be joined as a party to the proceedings. 5(3) Notice under subsection (2) may be given at any time during the proceedings."
[16]Part 19.4A of the CPR provides:
"(1) The Court may not make a declaration of incompatibility in accordance with section 4 of the [HRA] unless 21 days' notice, or such other period as the court directs, has been given to the Crown. (2) Where notice has been given to the Crown a Minister, or other person permitted by that Act, shall be joined as a party on giving notice to the court."
[17]Paragraph 6 of the Practice Direction to Part 19 provides:
"6.1 Where a party has included in his statement of case – (1) a claim for a declaration of incompatibility in accordance with section 4 of the [HRA], or (2) an issue for the court to decide which may lead to the court considering making a declaration, then the court may at any time consider whether notice should be given to the Crown as required by that Act and give directions for the content of the notice. The rule allows a period of 21 days before the court will make the declaration but the court may vary this period of time. 6.2 The court will normally consider the issues and give the directions referred to in paragraph 6.1 at the case management conference. 6.3 Where a party amends his statement of case to include any matter referred to in paragraph 6.1, then the court will consider whether notice should be given to the Crown and give directions for the content and service of the notice. 6.4(1) The notice given under rule 19.4A must be served on the person named in the list published under section 17 of the Crown Proceedings Act 1947. (2) The notice will be in the form directed by the court but will normally include the directions given by the court and all the statements of case in the claim. The notice will also be served on all the parties. (3) The court may require the parties to assist in the preparation of the notice."
[18]Paragraph 5.1B of the Practice Direction to Part 52 states:
"CPR rule 19.4A and the Practice Direction supplementing it shall apply as if the reference to the case management conference were to the application for permission to appeal. (The Practice Direction to Part 19 provides for notice to be given and parties joined in certain circumstances to which this paragraph applies.)"
[19]Under these provisions what is required is reasonably clear. The difficulty which this appeal raises is when, and by whom, notice should be given to the Crown. It is desirable that a consistent practice should be adopted. However, a variety of circumstances can arise where the question of giving notice has to be considered. It is desirable, therefore, to avoid both unnecessary expense to the parties and the unnecessary involvement of the Crown, whilst at the same time ensuring that proceedings before the courts are not unduly disrupted by the requirement to give notice to the Crown.[20]Having considered the submissions which the parties helpfully made, including submissions on behalf of the Department, we suggest that: i) The formal notice which the HRA and the CPR require should always be given by the court. This is because the court will be in the best position to assess whether there is a likelihood of a declaration of incompatibility being made. ii) So as to give the Crown as much notice as possible, whenever a party is seeking a declaration of incompatibility or acknowledges that a declaration of incompatibility may be made, it should give as much informal notice to the Crown as practical of the proceedings and the issues that are involved. iii) The formal and informal notice to the Crown should be given to a person named in the list published under section 17 of the Crown Proceedings Act 1947. iv) At the same time as the party gives notice informally to the Crown, it should send a copy of such notice to the court so that the court is alerted to the fact that it will have to consider whether a formal notice should be given. It should also send a copy of the notice to the other parties. v) In these circumstances, we are referring to the court that will hear the proceedings. That is a trial court, at the level of the High Court or in the case of appeals, the Court of Appeal in the case of appeals to that court and the High Court in the case of appeals to the High Court. The County Court cannot make a declaration of incompatibility (section 4 (5) HRA). The Issues to Which This Appeal Gives Rise[21]If it were not for contentions based on the HRA, there would be no possible basis for interfering with the judge's decision. There is no ambiguity in the terms of section 21(4). Poplar could not obtain possession without an order of a court but the court was required to make the order if the defendant had a tenancy which was subject to section 21(4) and the proper notice was served (which in this case are now not in dispute).[22]On this appeal, as in the court below, the contentions of the defendant depend upon Article 8, coupled with Article 6, of the ECHR set out in Schedule I to the HRA. Article 8 is in the following terms:
" Right to respect for private and family life (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
[23]In considering Article 8, it is helpful in this context to have in mind the first paragraph of the First Protocol of the ECHR set out in Part II of Schedule I of the HRA. The Protocol provides that; "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law .."[24]Article 6 entitles the defendant to a fair trial of her right to remain in her home. There is no question of that right being infringed. If we hold that she is entitled to rely on Article 8, it may be necessary for the case to be remitted to the County Court to determine whether it is reasonable to make an order of possession. As to Article 8, it appears to us that the following issues require consideration:(1) Did the judge adopt an appropriate procedure to determine the Article 8 issue? (The Procedural Issue)(2) Is Poplar a public body or was it performing functions of a public nature? (The Public Body Issue)(3) Did making an order for possession contravene Article 8? (The Article 8 Issue)(4) If it did, is a declaration of incompatibility the appropriate remedy? (The Remedy Issue) The Procedural Issue[25]As already indicated, the defendant complains that the judge dealt with the Article 8 issues in far too summary a manner. Poplar, on the other hand, contends, though not with much enthusiasm, that this was the only appropriate way for the judge to deal with the issue. It would have been wrong of the judge to grant an adjournment so that the defendant could place before the court the evidence that she contended was required since this would have contravened the clear terms of section 21(4). Even if Article 8 was contravened, the correct remedy would be to grant a declaration of incompatibility, which would be available on an appeal. It was not for the judge to interpret section 21(4) in a way which gave him a discretion to decide whether or not to make an order for possession.[26]In general terms, we have already indicated our approval of the approach of the judge. This does not mean that we consider that the judge was not required to deal with the Article 8 issue once it was raised before him. In our judgment, the judge was required to deal with the defendant's contention, notwithstanding the language of section 21(4). Section 7 of the HRA provides, so far as relevant:
"7(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may – (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act."
[27]If the defendant is right in her contentions as to the manner in which Article 8 applies to her tenancy, then she is a "victim". Furthermore, if she is right, Poplar is a public authority. She is therefore entitled to rely on Article 8 "in any legal proceedings". The judge clearly accepted that this was the situation and that is why he set out his views as to why Article 8 did not apply to her tenancy. If the defendant is right, the question of incompatibility will have to be considered, but unless section 21(4) is found to be incompatible, the case will have to be remitted so that a judge can, in the light of her circumstances, decide how he should exercise the discretion he would then have. This issue is therefore confined to whether the judge was entitled to decide the matter on the limited material that was then available without granting an adjournment.[28]For reasons we have partly explained, we consider that the judge was entitled to dispose of the case as he did. He sensibly cut through the issues by accepting for the purpose of his decision that Poplar was at least performing a public function in terminating the defendant's tenancy and seeking possession and that Article 8(1) therefore applied. He focused on Article 8(2) and decided section 21(4) did not offend Article 8 on the ground that the purpose section 21(4) serves is within Article 8(2). A District Judge is familiar with housing issues and is perfectly entitled to apply his practical experience and common sense to an issue of this sort. It is not necessary at his level to hold a State trial into successive governments' housing policies in order to balance the public and private issues to which Article 8 gives rise. A great deal of expense and delay was avoided in a case which he was aware would be likely to come before this court in any event. (There is no power to make a declaration of incompatibility in the County Court.)[29]Mr Luba, on behalf of the defendant, advanced an argument based on the fact that the court is itself a public authority (section 6(3)(b)). However, if there is no contravention of Article 8 on which the defendant is entitled to rely, this argument does not avail the defendant.[30]If courts of first instance are encouraged to deal with HRA issues summarily, we appreciate, and the present appeal makes clear, that the Court of Appeal will have to be flexible in relation to its own procedures. The outcome of this appeal to a substantial extent depends upon the legislative framework. However, that legislation has to be interpreted against the factual background of how the legislation works on the ground. When it became apparent that this Court was going to decide for itself the principal issues involved rather than remit the appeal, if successful, to the court below, the parties wished to place additional evidence before the court. This was done, with our agreement, after the completion of the oral argument. It inevitably meant that the preparation of this judgment was somewhat delayed.[31]We are very grateful to the parties for the manner in which they have marshalled the evidence and for the further written argument which they have provided. We have considered whether we needed to hear further oral argument but have come to the conclusion that this is not necessary. The evidence, together with the written arguments, makes the positions of the parties clear. We need no further assistance in order to give our decision as to the outcome of this appeal. The Legislative Framework[32]In order to determine the remaining issues, it is critical to have in mind the manner in which the legislative framework, which sets out the duties which are owed to tenants in the position of the defendant, and under which a registered social landlord ("RSL") such as Poplar operates, has evolved.[33]The law affecting tenants of domestic accommodation has suffered from a failure to conduct a satisfactory review and consolidation of the legislation. This is despite a continuous process of amendment as the various governments of the day struggled to address the expense and chronic lack of accommodation for the less well off members of society. The Law Commission has now been given the responsibility of remedying this situation. Until this happens, in order to understand the present legislative position, it is helpful to have the historic position in mind.[34]At one time, the private sector was heavily controlled in order to mitigate the hardship caused to tenants by a shortage of housing. Rents were carefully controlled and tenants were given a substantial measure of statutory protection against eviction. So far as the private sector has been concerned, generally the policy has been to progressively reduce this control. The change of policy reflected the belief of governments that excessive control resulted in a deterioration in the quality and quantity of housing available to let in the private sector. This, it is said, has a variety of undesirable economic consequences for the public in general and the poorer members of society in particular.[35]The statutory responsibility of providing for those who do not have homes was and is that of local government, acting through housing authorities. In particular, boroughs such as Tower Hamlets are subject to a range of statutory duties to provide social housing. For this purpose, as Mr Gahagan points out in his written evidence on behalf of the Department, until the 1990's, local government authorities were not only responsible for the availability of local housing, but in addition acted as social landlords with their own housing stock. However, over the last decade, a number of local housing authorities have transferred their stock of housing to RSLs. This policy is considered to have been successful and it is being expanded.[36]Part 6 of the 1996 Act governs the allocation of housing accommodation by local housing authorities. A housing authority can select someone to be a secure tenant, or an introductory tenant, or nominate someone to be an assured tenant of RSL stock. Before the housing authorities can allocate accommodation, the person to whom the accommodation is to be allocated must fulfil the qualifying requirements. For this purpose, housing authorities establish and maintain a register of qualifying persons (section 162). Applicants have a right of review of decisions by authorities not to place them on a register or to remove them from the register. Housing authorities must also publish a scheme for determining priorities and procedures. The policy behind the 1996 Act, according to Mr Gahagan, was to create a "single route" through the housing register into social housing and remove a perceived fast-track into such housing for households accepted as statutorily homeless.[37]Part 7 of the 1996 Act places obligations on local housing authorities to assist homeless applicants. The level of assistance depends on the circumstances of the applicant and his or her household. The extent of the duty depends upon whether the applicant is or is not intentionally homeless. Assured tenancies and assured shorthold tenancies were introduced by Part 1 of the 1988 Act. The regime of assured and assured shorthold tenancies applies to most new lettings of residential property in the private sector. Tenancies where the interest of the landlord belongs to a local authority are excluded from being assured tenancies (Schedule 1 para 12 to the 1988 Act).[38]An assured shorthold tenancy is essentially a form of assured tenancy without security of tenure. Prior to the coming into force of section 96 of the 1996 Act, an assured shorthold tenancy had to be for a fixed term of not less than 6 months. This is no longer a requirement.[39]Changes were introduced by the 1996 Act which, at the time of its introduction, the government made clear were intended to increase the number of properties available for private renting. Procedures were simplified. An increase in the private rented sector in fact took place subsequent to the 1996 Act coming into force. The government regards the availability of assured shorthold tenancies as contributing to a larger, better quality, and better managed, private rented sector.[40]Mr Gahagan in his statement makes it clear that in many areas, particularly in London and the Southeast, demand for social housing far outweighs supply and therefore allocation must be made according to the degree of housing need and how long the applicants have been waiting. He also states:
"47. The purpose of the homelessness legislation is to provide a safety net for people who have become homeless through no fault of their own and would be vulnerable if they were not provided with temporary accommodation until a more settled housing solution becomes available. If people accepted as unintentionally homeless and in priority need were provided with accommodation with security of tenure, this would displace applicants with greater claim to scarce social housing. This would not be in the interests of public policy since it would amount to a fast track into a secure social tenancy for people accepted as statutorily homeless and would create a perverse incentive for people to apply for homelessness assistance. 48. The provision of temporary accommodation can be expensive for authorities, particularly in areas of high demand where they do not have sufficient accommodation of their own and must make arrangements with other landlords. A guiding principle underlying the legislation is that authorities are not obliged to secure accommodation – other than very briefly if the applicant has priority need – for people who have made themselves homeless intentionally. Such applicants are expected to make their own arrangements to find accommodation for themselves. 49. The interim duty to accommodate those applicants who appear to be homeless and have a priority need, pending completion of inquiries and a decision as to whether a substantive duty is owed, is a very important aspect of the safety net. It is essential to the public policy interest, however, that authorities can bring such interim accommodation to an end where they are satisfied that the applicant does not qualify for any further assistance."
[41]The role of housing associations in providing accommodation has equally been affected by government policy.[42]Housing associations were very much "the legal embodiment of the voluntary housing movement" as Mr Brockway, another witness on behalf of the Department, stated. Originally, many were small local charities, though others were large entities endowed by wealthy employers or philanthropists. The legal definition of a housing association is contained in section 1(1) of the Housing Association Act 1985. This section makes it clear that a housing association may be a charity, an industrial and provident society, or a company which does not trade for profit and which has among its objects the provision of housing accommodation. Some are fully mutual co-operative organisations. Throughout the 20 th century many housing associations were funded by grants or loans usually through local authorities. In 1964, the Housing Corporation (the "Corporation") was created and thereafter most of the public funding was channelled through the Corporation. The Corporation was granted supervisory powers by the Housing Act 1974. There are now 4000 housing associations, of which approximately 2200 are registered with the Corporation as RSLs. Since 1988, RSLs have been required to borrow funds in the private markets to supplement public funding. To date, some £20 billion has been raised outside the public sector borrowing requirement. The other major development has been the growth in the transfer of housing stock from local authorities to RSLs. Both under the previous and the present government, some 500,000 dwellings have been transferred in this way. Today, there are 1.5 million dwellings in the ownership of RSLs.[43]Under Part 1 of the 1996 Act, the Corporation is given two basic roles. These are to provide funding to RSLs and to regulate them. The funding is payable by way of grant under section 18 of the 1996 Act. Regulation covers the area of governance, finance and housing management. If performance fails, the Corporation can exercise a number of powers: it can withdraw funding; make appointments to the governing body of the RSL and remove employees or governing body members (Schedule 1 to the 1996 Act).[44]Section 170 of the 1996 Act importantly provides:
"Where a local housing authority so requests a registered social landlord shall co-operate to such an extent as is reasonable in the circumstances in offering accommodation to people with priority on the authority's housing register."
[45]Section 213 of the 1996 Act also requires "other bodies" to co-operate with housing authorities to assist in the discharge of their functions, subject to the request for co-operation being reasonable in the circumstances. "Other bodies" includes RSLs: section 213 (2) (a). Mr Brockway states that in most local authority areas, the housing authority will have nomination agreements with RSLs. These agreements enable the authority to nominate tenants, to whom the RSLs should grant tenancies, from the housing registers.[46]Many local authorities have transferred some or all of their housing stock to one or more RSLs. This has happened so far as Poplar is concerned. Poplar was created for the purpose of taking over part of the housing stock of the borough of Tower Hamlets. It was a condition of Tower Hamlets receiving funding that this should happen. The funding came from the government under a scheme (the Estates Renewal Challenge Fund) designed to bring about the repair and improvement of the housing stock, the improvement of security for occupants of estates, to tackle anti-social behaviour and crime and to develop community initiatives. The transfer of the council stock to Poplar was only possible where there was a majority vote by tenants in favour of the transfer of the particular housing stock involved. No payment was involved for the transfer. The properties transferred were regarded as having a negative value because of their state of repair. Mr Brockway makes it clear that the government's policy was that the RSLs should be private sector bodies. The way they were funded was dependent on this. Mr Brockway states that as a matter of policy the Corporation has always asked RSLs to grant the most secure form of tenure available to its tenants. This will usually be achieved by granting periodic tenancies of which possession can only be achieved on discretionary grounds. Such tenancies are accepted by Mr Luba as providing the necessary protection which he submits is necessary to comply with Article 8. The Corporation requires that if a tenant has an assured tenancy, then an order for possession can only be sought if it is reasonable to seek the order.[47]However, guidance has been given by the Corporation to RSLs to grant assured shorthold tenancies where special circumstances exist. Those circumstances include where the provision of accommodation is to be temporary, as was the position in the case of the defendant.[48]Mr Christopher Holmes, the director of Shelter, has provided evidence for the defendant. Based on his experience, he states that in practical terms, particularly where large-scale voluntary transfers have occurred, housing associations provide the means whereby accommodation is made available to homeless persons. This can include interim accommodation under section 188 of the 1996 Act while the priority of an applicant is being determined and where, as in the case of the defendant, the applicant has been found to be homeless intentionally. Mr Holmes goes on to point out:
"To enable the statutory duties imposed on local authorities to be discharged appropriately, close co-operation with housing associations continues beyond the point where accommodation is made available. When duties come to an end and accommodation is to be recovered, notification will pass from the authority to the association and possession will be recovered in due course. In effect, the association acts as a conduit for the authority's decision on whether a duty arises or has come to an end."
[49]He adds:
"Although there is no doubt that housing associations have their own constitutions and mechanisms for governance, in the practical day-to-day management of both long-term lettings and short-term provision for the homeless, they are inextricably linked to the statutory framework imposing duties on local authorities and associations alike."
[50]He further adds:
"The complex nature of housing associations, run as they are, by unpaid persons and with their own constitutions, is apparent. And yet the associations are free to decide key issues regarding investment of funds and the nature of refurbishment and development works. Although tied in with local authorities in terms of allocations and homelessness, this does not, of itself, alter the fundamentally private nature of associations. There are many bodies which are required to act in accordance with public powers, duties and functions but which remain essentially private bodies. Railtrack is an example."
[51]Later, having referred to Mr Brockway's approach that any RSL taking over the stock of a housing authority will be a private sector body, Mr Holmes adds:
"This is, of course, the case but the day-to-day management of that stock may in my view be properly categorised as a public function in the circumstances I have described in this statement."
[52]He also refers to the fact that RSLs are subject to the scheme introduced by section 51 of the 1996 Act for the investigation of complaints by the independent housing ombudsman.[53]Mr Holmes does not accept that the use of assured shorthold tenancies by RSLs is necessary. His complaints include the fact that:
"More and more tenants are losing their homes on mandatory grounds. The government's own homelessness statistics show that, between 1992 and 1999, there was an increase of nearly 63% in the number of households accepted as homeless and in priority need following the recovery of possession of premises let on an assured shorthold tenancy. The loss of a shorthold is now the third most common reason for homelessness given by persons accepted as homeless by local authorities. In some areas of high housing demand it is the most common reason."
[54]He supports his view by referring to cases which illustrate the disadvantage of assured shorthold tenancies. Public Bodies and Public Functions[55]The importance of whether Poplar was at the material times a public body or performing public functions is this: the HRA will only apply to Poplar if it is deemed to be a public body or performing public functions. HRA section 6(1) makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(3) states that a "public authority" includes "(6) any person certain of whose functions are functions of a public nature". Section 6(5) provides that "in relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private."[56]The defendant relies on the witness statements of Mr David Cowan, a lecturer of law at the University of Bristol (specialising in housing law and policy) and of Professor Alder of the University of Newcastle in support of her contention that Poplar is a public authority within section 6. Both Mr Cowan and Professor Alder acknowledge that the questions raised are ones of importance and of some debate in academic circles. However, Mr Cowan says it is "tolerably clear that RSLs do fall within the definition of public authority under section 6(1)" as they are performing public functions.[57]Mr Cowan says:
"The obligation to provide interim accommodation under Part 7 (homelessness) of the Housing Act 1996 pending enquiries is owed by the local authority to the homeless applicant. That is clearly a public function. The accommodation can be provided by an RSL – see section 206(1)(b). An RSL which provides that accommodation is thus fulfilling a public function. Where, as here, the accommodation provided to the homeless household in satisfaction of the duty was originally owed by the local authority, but subsequently transferred to the RSL whilst the duty was ongoing, then the public nature of a function is made all the clearer. The decision to seek possession of the property once the relevant enquiries and a decision on the homelessness application have been made are all part and parcel of that function. It is therefore clear that this case does not fall within the exemption of activities covered by section 6(5)."
[58]We agree with Mr Luba's submissions that the definition of who is a public authority, and what is a public function, for the purposes of section 6, should be given a generous interpretation. However, we would suggest that the position is not as simple as Mr Cowan suggests. The fact that a body performs an activity which otherwise a public body would be under a duty to perform, cannot mean that such performance is necessarily a public function. A public body in order to perform its public duties can use the services of a private body. Section 6 should not be applied so that if a private body provides such services, the nature of the functions are inevitably public. If this were to be the position, then when a small hotel provides bed and breakfast accommodation as a temporary measure, at the request of a housing authority that is under a duty to provide that accommodation, the small hotel would be performing public functions and required to comply with the HRA. This is not what the HRA intended. The consequence would be the same where a hospital uses a private company to carry out specialist services, such as analysing blood samples. The position under the HRA is necessarily more complex. Section 6(3) means that hybrid bodies, who have functions of a public and private nature are public authorities, but not in relation to acts which are of a private nature. The renting out of accommodation can certainly be of a private nature. The fact that through the act of renting by a private body a public authority may be fulfilling its public duty, does not automatically change into a public act what would otherwise be a private act. See, by analogy, R v Muntham House School, ex parte R [2000] LGR 255.[59]The purpose of section 6(3)(b) is to deal with hybrid bodies which have both public and private functions. It is not to make a body, which does not have responsibilities to the public, a public body merely because it performs acts on behalf of a public body which would constitute public functions were such acts to be performed by the public body itself. An act can remain of a private nature even though it is performed because another body is under a public duty to ensure that that act is performed.[60]A useful illustration is provided by the decision of the European Court of Human Rights in Costello Roberts v United Kingdom [1993] 19 EHRR 112 . The case concerned a seven year old boy receiving corporal punishment from the headmaster of an independent school. The European Court made it clear that the State cannot absolve itself of its Convention obligations by delegating the fulfilment of such obligations to private bodies or individuals, including the headmaster of an independent school. However, if a local authority, in order to fulfil its duties, sent a child to a private school, the fact that it did this would not mean that the private school was performing public functions. The school would not be a hybrid body. It would remain a private body. The local authority would, however, not escape its duties by delegating the performance to the private school. If there were a breach of the Convention, then the responsibility would be that of the local authority and not that of the school.[61]The approach of Professor Alder differs from that of Mr Cowan. He states that there is no single factor that determines whether a function is a public function. He adds:
"The meaning of 'public function' is not necessarily the same in the different contexts where the matter arises . Analogies, particularly in respect to the test for determining which bodies are susceptible to judicial review in the Administrative Court may be helpful, given that one purpose of judicial review, is to ensure that public bodies are subject to high standards of conduct the same being true of the ECHR. There is also an analogy with the test that is being developed in EC law for determining whether a body is a public body, namely "a body, whatever its legal form, which has been made responsible pursuant to a measure adopted by the state, for providing a public service under the control of the state, and has for that purpose special powers beyond those which result from the normal rules applicable in relation to individuals", ( Foster v British Gas , case C188/89 [1990] ECR1/3313 ECJ)."
[62]In coming to his conclusion that in this case the activities of Poplar are within section 6, the Professor relies upon: the charitable status of Poplar the fact that Poplar is subject to the control of the Corporation the sanctions which the Corporation can apply the provision of public funding to Poplar the standards which Poplar is required to adopt in the exercise of its powers the control which the Corporation can exert over the exercise of Poplar's powers local authority involvement[63]Both the Department and Poplar dispute that Poplar is a public authority. Mr Philip Sales helpfully adopts the distinction correctly identified by Clayton & Tomlinson, The Law of Human Rights (at para 5.08) between standard public authorities, functional public authorities and courts and tribunals. Mr Sales submits, and we, like Professor Alder and Mr Holmes, would agree that housing associations as a class are not standard public authorities. If they are to be a public authority this must be because a particular function performed by an individual RSL is a public as opposed to a private act. The RSL would then be a functional, or hybrid, public authority.[64]In support of his contention, Mr Sales draws attention to the following features of housing associations; a) They vary vastly in size. b) Their structure is that of an ordinary private law entity. c) As to regulation by the Corporation he points to the fact that many financial institutions are regulated by the Bank of England but this does not make them public bodies. Furthermore, the Corporation gives each RSL freedom to decide how it achieves what is expected of it. d) Members of the RSL are not appointed by, or answerable to, the government but are private individuals who volunteer their services. Even in the rare cases were the Corporation makes appointments, the appointee owes his duty to the RSL. e) In R (Louisa Goldsmith and Others) v Servite Houses and Wandsworth LBC. (Unreported, 12 May 2000) Moses J decided a housing association was not subject to judicial review. f) Although a RSL is funded in part out of public funds, the major source of its income is its rental income. In any event, this is not by any means conclusive: see Peabody Housing Association Ltd v Green (1978) 33 P& CR 644 at p 660& 662.[65]In coming to our conclusion as to whether Poplar is a public authority within the HRA meaning of that term, we regard it of particular importance in this case that: i). While HRA section 6 requires a generous interpretation of who is a public authority, it is clearly inspired by the approach developed by the courts in identifying the bodies and activities subject to judicial review. The emphasis on public functions reflects the approach adopted in judicial review by the courts and text books since the decision of the Court of Appeal (the judgment of Lloyd LJ) in R v Panel of Takeovers and Mergers, ex p. Datafin [1987] QB 815 . ii). Tower Hamlets, in transferring its housing stock to Poplar, does not transfer its primary public duties to Poplar. Poplar is no more than the means by which it seeks to perform those duties. iii). The act of providing accommodation to rent is not, without more, a public function for the purposes of HRA section 6. Furthermore, that is true irrespective of the section of society for whom the accommodation is provided. iv). The fact that a body is a charity or is conducted not for profit means that it is likely to be motivated in performing its activities by what it perceives to be the public interest. However, this does not point to the body being a public authority. In addition, even if such a body performs functions, that would be considered to be of a public nature if performed by a public body, nevertheless such acts may remain of a private nature for the purpose of sections 6(3)(b) and 6(5). v). What can make an act, which would otherwise be private, public, is a feature or a combination of features which impose a public character or stamp on the act. Statutory authority for what is done can at least help to mark the act as being public; so can the extent of control over the function exercised by another body which is a public authority. The more closely the acts that could be of a private nature are enmeshed in the activities of a public body, the more likely they are to be public. However, the fact that the acts are supervised by a public regulatory body does not necessarily indicate that they are of a public nature. This is analogous to the position in judicial review, where a regulatory body may be deemed public but the activities of the body which is regulated may be categorised private. vi). The closeness of the relationship which exists between Tower Hamlets and Poplar. Poplar was created by Tower Hamlets to take a transfer of local authority housing stock; five of its board members are also members of Tower Hamlets; Poplar is subject to the guidance of Tower Hamlets as to the manner in which it act towards the defendant. vii). The defendant, at the time of transfer, was a sitting tenant of Poplar and it was intended that she would be treated no better and no worse than if she remained a tenant of Tower Hamlets. While she remained a tenant, Poplar therefore stood in relation to her in very much the position previously occupied by Tower Hamlets.[66]While these are the most important factors in coming to our conclusion, it is desirable to step back and look at the situation as a whole. As is the position on applications for judicial review, there is no clear demarcation line which can be drawn between public and private bodies and functions. In a borderline case, such as this, the decision is very much one of fact and degree. Taking into account all the circumstances, we have come to the conclusion that while activities of housing associations need not involve the performance of public functions in this case, in providing accommodation for the defendant and then seeking possession, the role of Poplar is so closely assimilated to that of Tower Hamlets that it was performing public and not private functions. Poplar therefore is a functional public authority, at least to that extent. We emphasise that this does not mean that all Poplar's functions are public. We do not even decide that the position would be the same if the defendant was a secure tenant. The activities of housing associations can be ambiguous. For example, their activities in raising private or public finance could be very different from those that are under consideration here. The raising of finance by Poplar could well be a private function. The Article 8 Issue[67]To evict the defendant from her home would impact on her family life. The effect of Article 8(2) is therefore critical. The starting point is the fact that after the order for possession was obtained, Tower Hamlets continued to owe a limited duty to provide the defendant with assistance as a person who was found to be intentionally homeless. This was so even though Poplar's responsibility came to an end. If the defendant had not fallen into one of the special categories, she would have been provided with greater security of occupation.[68]Mr Holmes recognises that the defendant could not expect security of tenure, but he submits that there should be a residual discretion to protect the defendant's basic human rights. He also submits that this would not in practice give rise to undesirable consequences, to which the witnesses for the Department refer, but this is very much a matter of judgment.[69]There is certainly room for conflicting views as to the social desirability of an RSL being able to grant assured shorthold tenancies which are subject to section 21(4) of the 1988 Act. Mr Holmes considers the present policy mistaken. However, in considering whether Poplar can rely on Article 8(2), the Court has to pay considerable attention to the fact that Parliament intended when enacting section 21(4) of the 1988 Act to give preference to the needs of those dependent on social housing as a whole over those in the position of the defendant. The economic and other implications of any policy in this area are extremely complex and far-reaching. This is an area where, in our judgment, the courts must treat the decisions of Parliament as to what is in the public interest with particular deference. The limited role given to the court under section 21(4) is a legislative policy decision. The correctness of this decision is more appropriate for Parliament than the courts and the HRA does not require the courts to disregard the decisions of Parliament in relation to situations of this sort when deciding whether there has been a breach of the convention.[70]The defendant's lack of security is due to her low priority under the legislation because she was found to be intentionally homeless. She was and must be taken to be aware that she was never more than a tenant as a temporary measure. In the case of someone in her position, even if she is a mother of young children, it is perfectly understandable that Parliament should have provided a procedure which ensured possession could be obtained expeditiously and that Poplar should have availed itself of that procedure.[71]Tenants in the position of the defendant have remedies other than under section 21(4) which are relevant when considering Article 8. There are provisions for appeal against the decision that a person is intentionally homeless. There is the regulatory role of the corporation and there is the Ombudsman. There is also the fact that RSLs are subject to considerable guidance as to how they use their powers.[72]We are satisfied, that notwithstanding its mandatory terms, section 21(4) of the 1988 Act does not conflict with the defendant's right to family life. Section 21(4) is certainly necessary in a democratic society in so far as there must be a procedure for recovering possession of property at the end of a tenancy. The question is whether the restricted power of the court is legitimate and proportionate. This is the area of policy where the court should defer to the decision of Parliament. We have come to the conclusion that there was no contravention of Article 8 or of Article 6. The Incompatibility Issue[73]As we have decided that there is no contravention of Articles 6 and 8, strictly, there is no need for us to speculate as to whether, if there had been a contravention, this would have created a situation of incompatibility. We note that if we decided that there was a contravention of Article 8, the Department would prefer us not to interpret section 21(4) "constructively" but instead to grant a declaration of incompatibility. However, so far, the sections of the HRA dealing with interpretation and incompatibility have been subject to limited guidance and for that reason we hope it will be helpful if we set out our views even though they are strictly obiter.[74]The relevant sections of the HRA are sections 3 and 4. They are in the following terms:
"3. Interpretation of legislation (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. (2) This section – (a) applies to primary legislation and subordinate legislation whenever enacted; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility. 4. Declaration of incompatibility (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. (3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right. (4) If the court is satisfied – (a) that the provision is incompatible with a Convention right and (b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility. (5) In this section 'court' means – (a) the House of Lords; (b) the Judicial Committee of the Privy Council; (c) the Courts-Martial Appeal Court; (d) in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session; (e) in England and Wales or Northern Ireland, the High Court or the Court of Appeal. (6) A declaration under this section ('a declaration of incompatibility') – (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made."
[75]It is difficult to overestimate the importance of section 3. It applies to legislation passed both before and after the HRA came into force. Subject to the section not requiring the court to go beyond that which is possible, it is mandatory in its terms. In the case of legislation predating the HRA where the legislation would otherwise conflict with the Convention, section 3 requires the court to now interpret legislation in a manner which it would not have done before the HRA came into force. When the court interprets legislation usually its primary task is to identify the intention of Parliament. Now, when section 3 applies, the courts have to adjust their traditional role in relation to interpretation so as to give effect to the direction contained in section 3. It is as though legislation which predates the HRA and conflicts with the Convention has to be treated as being subsequently amended to incorporate the language of section 3. However, the following points, which are probably self evident, should be noted: a) unless the legislation would otherwise be in breach of the Convention section 3 can be ignored; (so courts should always first ascertain whether, absent section 3, there would be any breach of the convention), b) if the court has to rely on section 3 it should limit the extent of the modified meaning to that which is necessary to achieve compatibility; c) section 3 does not entitle the court to legislate; ... its task is still one of interpretation, but interpretation in accordance with the direction contained in section 3), d) the views of the parties and of the Crown as to whether a "constructive" interpretation should be adopted cannot modify the task of the court; (if section 3 applies the court is required to adopt the section 3 approach to interpretation), e) where despite the strong language of section 3, it is not possible to achieve a result which is compatible with the convention, the court is not required to grant a declaration and presumably in exercising its discretion as to whether to grant a declaration or not it will be influenced by the usual considerations which apply to the grant of declarations.[76]The most difficult task which courts face is distinguishing between legislation and interpretation. Here practical experience of seeking to apply section 3 will provide the best guide. However, if it is necessary in order to obtain compliance to radically alter the effect of the legislation this will be an indication that more than interpretation is involved.[77]In this case Mr Luba contends that all that is required is to insert the words "if it is reasonable to do so" into the opening words of section 21(4). The amendment may appear modest but its effect would be very wide indeed. It would significantly reduce the ability of landlords to recover possession and would defeat Parliament's original objective of providing certainty. It would involve legislating.[78]Finally, we are prepared to grant the parties declarations if this will assist them to seek permission to appeal. Despite this, the parties should not assume permission to appeal will be granted. The decision whether to grant permission or to leave the decision to grant permission to the Lords, should not be affected by the fact that the appeal involves the HRA. The House of Lords should normally be allowed to select for itself the appeals which it wishes to hear. The appeal is dismissed.

ORDER

Appeal dismissed; no order for costs save appellants costs to be assessed in accordance with Community Legal Service (costs) Regulations 2000; declaration of incompatibility refused; appellant to vacate premises within 28 days; permission to appeal refused (Order does not form part of approved Judgment)

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