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Report on Hardwicke’s Weaver Roundtable seminar – 27th January 2010

On 27 January 2010, Hardwicke’s Social Housing team held a round-table discussion on the practical and legal implications of the Court of Appeal’s landmark decision in Weaver v London Quadrant Housing Trust [2009] EWCA Civ 587. The event saw a lively discussion from a wide range of leading practitioners working across the social housing spectrum.

The discussion began with a presentation from Dean Underwood, a barrister at Hardwicke and a member of the Social Housing team.    He started by establishing the background to Weaver, and placed the decision firmly in the context of the leading cases of Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37 and YL v. Birmingham City Council [2007] UKHL 27. He then examined the specifics of what was argued in the two decisions in Weaver, and the contradictions raised during its course from the Divisional Court [2008] EWHC 1377 to the Court of Appeal.

Although the Supreme Court have denied permission to appeal in Weaver, it noted in its grounds for refusing the appeal that whilst Weaver had been unsuitable on its specific facts, the issues it raised were of public importance and accordingly the court would consider applications for a leapfrog appeal if a suitable case could be found.

The second presentation of the discussion was given by Andrew Lane, a barrister at Hardwicke and a member of the Social Housing team.  He examined the practical effect of what Weaver means to registered providers, focusing on; possession claims and Judicial Review, the Freedom of Information Act 2000 and public sector funding. In particular he looked at the effect of the decision in Weaver on defences to possession proceedings under both Gateway A and Gateway B, and the practical hurdles posed by the case of Manchester City Council v Pinnock [2009] EWCA Civ 852. which is currently awaiting a hearing date in front of the Supreme Court.

The presentations were followed by a discussion of the issues raised.  The effect of Pinnock’s current progress through the courts was a subject of considerable comment, with it being noted that the pending Supreme Court hearing had caused some judges to stay cases where the question of their jurisdiction had been raised.  The county courts in particular had been especially reluctant to engage in questions which had the potential to be pushed outside their remit by a subsequent Supreme Court decision.

There was further discussion over the best tactical approach to take where tenant’s were seeking to raise issue over whether the landlord was a public body carrying out a public act, and in particular how best to ensure that potential proceedings were dealt with as early as possible, in order to stop costs from escalating.  This is of relevance in relation to judicial review proceedings, where a robust early response can knock out claims at the permission stage before matters get out of hand, as well as possession proceedings where the strike out procedure and/or preliminary issue determination may shorten matters.

Many of the speakers agreed that because the issues raised by Weaver were current and topical, they were increasingly being picked up by tenant solicitors, with the effect that more requests were being made at an early stage for disclosure of policy documents in order to determine whether or not to mount a Public law challenge.  One suggested response to this was to develop pro-forma witness statements with exhibits attached to deal specifically with the s.6 points which are being repeatedly raised.  However, the sentiment was expressed that it was necessary to tread a fine line between following internal policy documents, whilst also ensuring that such documents did not act so as to fetter the discretion of the decision maker.

The relationship between a body which is amenable to judicial review, and a body which falls within the s.6 Human Rights Act 1998 (HRA) definition of a public authority, was also discussed.  Despite Elias LJ’s comments in Weaver that the fact a body is a public authority for s.6 purposes does not automatically mean it will be amenable to judicial review, the increasing importance of potential judicial review claims in the decision making process was acknowledged.

Several speakers expressed their concerns that the risk of judicial review proceedings, and their associated costs, have created a culture of worry about making sure decisions are thought through properly.  The need to make the paperwork clear and unequivocal, as well as putting in place a strict paper-trail was noted in particular.  Several speakers said that the  ‘top down’ compliance required to satisfy regulatory bodies was as important to their decision making process as the potential of ‘bottom up’ challenges from tenants. The role of the minute-taker was acknowledged as crucially important in ensuring that the decision-making process was recorded properly.

There was some division amongst speakers as to the risk and worry of the use of freedom of information legislation.  Other speakers argued that any change would require an amendment to Schedule 1 of the Freedom of Information Act 2000, the risk of this was extremely low.  Any change which was mooted would have to go through consultation, and could be dealt with at that stage.

There was general consensus that any future Weaver-style test case would probably come from a judicial review action.  However, the concern was raised that it would be important for registered providers that the test case be one where the provider had behaved in accordance with its own policies as well as being fair and reasonable, in order that the court could focus properly on the question of how such institutions and their decisions should be treated.

The discussion was lively and raised a number of points of interest, which are clearly of importance to all those involved in the field of social housing.  One of the problems of the Weaver decision has been to raise the level of uncertainty faced by those in the sector, and this uncertainty does not look set to recede any time soon.  The members of Hardwicke’s Social Housing team are on hand to provide help and assistance arising from all aspects of this difficult and challenging area.

For further information please do not hesitate to contact Senior Practice Manager Daniel Kemp on 020 7691 0003 or by email to daniel.kemp@hardwicke.co.uk.

For further information on Hardwicke's Social Housing, and wider Public Law teams, please click here;
http://www.hardwicke.co.uk/social-housing/
http://www.hardwicke.co.uk/public/