Housing in UK Law

The power of decision being committed by the statute exclusively to the housing authority, their exercise of the power can only be challenged before the courts on the strictly limited grounds (i) that their decision was vitiated by bias or procedural unfairness; (ii) that they have reached a conclusion of fact which can be impugned on the principles set out in the speech of Lord Radcliffe in Edwards v. Bairstow [1956] A.C. 14; or (iii) that, in so far as they have exercised a discretion (as they may require to do in considering questions of reasonableness under section 17(1)(2) and (4)), the exercise can be impugned on the principles set out in the judgment of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223.

Once a decision has been reached by the housing authority which gives rise to the temporary, the limited or the full housing duty, rights and obligations are immediately created in the field of private law. Each of the duties referred to, once established, is capable of being enforced by injunction and the breach of it will give rise to a liability in damages.

The economic and other implications of any policy in this area are extremely complex and far-reaching. 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.

The House has made it very plain, most recently in Runa Begum v Tower Hamlets London Borough Council [2003] UKHL 5, [2003] 2 WLR 388, particularly in paragraphs 9 and 49, that the administration of public housing under various statutory schemes is entrusted to local housing authorities. It is not for the court to second-guess allocation decisions. The Strasbourg authorities have adopted a very pragmatic and realistic approach to the issue of justification.

Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.

First, it is designed for the expressed purpose of bringing families together. The Act must be interpreted in the light of these matters, with liberality having regard to its social purposes, and also with recognition of the claims of others and the nature and scale of local authorities' responsibilities.

The first part of the definition in footnote 11 – amplified in paragraphs 3–029, 3–031 and 3–033 of the PPG – contains four elements: first, that the sites in question should be " available now"; second, that they should "offer a suitable location for development now"; third, that they should be " achievable with a realistic prospect that housing will be delivered on the site within five years"; and fourth, that "development of the site is viable" (my emphasis).