A very public confrontation

There has been a debate for some time over whether or not registered social landlords are public authorities for the purpose of the 1998 Human Rights Act.

Earlier this month, an employment tribunal unanimously decided, on a hearing of a preliminary issue, that Airways Housing Society is not a public authority within the meaning of Section 6(3)(b) of the Human Rights Act. This meant the tribunal did not uphold a claim against the RSL that it had interfered with someone's right to respect for private and family life, home and correspondence as laid out in the act.

The tribunal decided Airways was not a public body even though it is an industrial and provident society and receives between 65% and 75% of its funding from the Housing Corporation and local authorities.

The tribunal accepted the argument that, as an RSL, Airways is able to regulate its own operations in accordance with its own constitution, raise private finance, allocate housing according to its own policies and decide whether or not to contract to provide services.

It also found that Airways does not exercise statutory powers and that any decision that has an impact upon its tenants is not susceptible to judicial review because it is not a public body.

In reaching its decision, the tribunal considered previous cases including Poplar Housing and Regeneration Community Association Limited v Donoghue, Queen v Servite Houses and R v Leonard Cheshire Foundation.

In the Leonard Cheshire Foundation case, the Court of Appeal decided that the provision of residential care by the foundation was not a public function. Airways' tribunal referred to this and decided that, similarly, Airways' provision of social housing did not mean it had "stepped into the shoes of a local authority such that it could be said to be a public authority".

The applicant, a former employee, accepted that he did not have a free-standing right before the tribunal to claim that his human rights had been breached.

Notwithstanding the applicant's argument that, if it was found that Airways was a public authority, the outcome of the case would have a great impact on all employees of housing associations, the tribunal found that the human rights issue could – and should – have been left to the remedy stage.

The tribunal rarely orders costs, and even then awards of just £500-1000 are usually made. But in this case, the tribunal ordered that Airways' costs be paid in full.

So, although the issue of whether or not an individual RSL is a public authority or not will depend on the particular facts, in the mean time RSLs (and in particular those that are not post-transfer organisations) can draw some comfort from this decision.