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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Donoghue v Poplar Housing & Regeneration Community Association Ltd & Anor  EWCA Civ 595 (27 April 2001)
Cite as:  QB 48, (2001) 33 HLR 73, (2001) 3 LGLR 41,  ACD 76,  NPC 84,  19 EGCS 141,  3 WLR 183,  BLGR 489,  4 All ER 604,  2 FLR 284,  EWCA Civ 595,  UKHRR 693,  Fam Law 588,  3 FCR 74
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOW COUNTY COURT
Strand, London, WC2A 2LL
Friday 27th April 2001
B e f o r e :
LORD JUSTICE MAY
LORD JUSTICE JONATHAN PARKER
| TERESA DONOGHUE
| - -
| POPLAR HOUSING AND REGENERATION COMMUNITY
| THE SECRETARY OF STATE FOR THE ENVIRONMENT,
TRANSPORT AND THE REGIONS
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Ashley Underwood QC & Mr Adrian Davis (Tower Hamlets Legal Services, Isle of Dogs) appeared for the) Respondent
Mr Philip Sales & Miss Sarah Moore (Treasury Solicitors, London) appeared for the Interested Party
Crown Copyright ©
LORD WOOLF CJ:
The Approach of the Judge
"(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).
"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 (2) that I have got in mind, "the protection of the rights and freedoms of others"."
Intervention of the Secretary of State for the Environment, Transport and the Regions
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."
"(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."
"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."
"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.)"
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
"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."
"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…….."
(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
"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."
The Legislative Framework
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."
"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."
"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."
"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."
"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."
"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."
"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."
Public Bodies and Public Functions
"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)."
"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  ECR1/3313 ECJ)."
- 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
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.
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  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.
The Article 8 Issue
The Incompatibility Issue
"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."
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.
The appeal is dismissed.