Pursuing complaints using judicial review

In certain circumstances registered social landlords can be considered a public authority and therefore subject to judicial review.

This content applies to Scotland

Is the housing association a 'public body'

Whether a housing association is considered a public authority depends on a variety of factors. [1] The test is not a black and white one and depends on a housing association’s functions and make-up. The factors which determine whether a housing association is considered to be a ‘public authority’ are as follows:

  • what is the extent of their function in the allocation and management of housing?

  • are they publicly funded?

  • are they exercising statutory powers?

  • do they take the place of central or local government?

  • do they provide a public service?

From the Weaver case it seems likely that most housing associations would be considered a ‘public authority’ when considering all of their functions and subject to judicial review. Especially where a large portion of their funding comes from the public purse, they are involved in the provision of low cost housing (which is a governmental responsibility), they are acting in the public interest, have charitable status and are subject to regulation which has the aim of the government achieving its aims in relation to the housing of vulnerable people.

It may be more difficult to subject a registered social landlord to judicial review on an issue that relates to a contract between the landlord and an individual, for example, a registered social landlord's decision to terminate a short assured tenancy agreement, as opposed to an issue where there is no contract in place for example, the refusal of a registered social landlord to permit someone on to its waiting list because of previous alleged anti-social behaviour. (However, it should noted that such a refusal is not permissible. For more information, please see the section on allocation of housing.)

If judicial review is an option advisers should refer their client to an appropriate legal specialist immediately.

Last updated: 4 December 2019

Footnotes

  • [1]

    R. (on the application of Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587