The issue first came to the fore in 2002 when the Court of Appeal in Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48 considered what was a public authority and what was a public function for the purposes of section 6 of the Human Rights Act 1998. They held that housing associations were hybrid bodies – part public, part private - so lettings could in some cases be private acts. This was followed by Weaver v London & Quadrant Housing Trust [2009] EWCA Civ 235 which made it clear that not all housing associations are public authorities and not everything they do are public acts. The touchstone is the nature of the act and how close to the State it approaches. Thus, in Donoghue, the housing association was standing in the shoes of the local authority. In Weaver, L&Q accepted that they were susceptible to judicial review as a public body. Both L&Q and Poplar Housing are large entities with substantial resources. They have taken stock transfers from local authorities and thus inherited some of the roles of the local authority. They “feel” very public.
On the other hand, the Leonard Cheshire Foundation is not a public authority when running a residential care home, even though it accommodates people to whom the local authority owed a statutory duty: R (Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366. An almshouse run by a charity was (probably) not a public authority in Watts v Stewart [2016] EWCA Civ 1247; and Southward Housing Co-Operative Ltd, a fully mutual housing association, was held not to be a public authority in Walker ’s case [2015] EWHC 1615 (Ch).
