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It is quite extraordinary to think that a statutory right of appeal to the High Court that has existed for over 12 years has never in fact resulted in a judgment. That has now changed as a result of National Community Homes CIC (formerly known as Larch Housing Assoc.Ltd) v Social Housing Regulator [2022] EWHC 3171 (Admin), handed down on 12 December 2022.
By way of background, Part 2 of the Housing and Regeneration Act 2008 (“the 2008 Act”) establishes a regulatory regime for social housing. Section 111 of the 2008 Act requires the regulator to maintain a register of providers of social housing. An English body is eligible for registration if it meets certain conditions and this includes that the body satisfies any relevant criteria set by the regulator as to (a) its financial situation, (b) its constitution and (c) other arrangements for its management.
Where registration is not compulsory it is voluntary. Social housing providers do not have to be registered, but may choose to be, for a variety reasons. This includes that it may cause lenders and rating agencies to view private social housing providers more favourably, many local authorities require social housing providers to be registered before they will use them to house those people on their waiting lists and there can be associated advantages as to the rates of Housing Benefit that can be claimed.
In the present case, the Regulator concluded, after several years of intensive engagement, that Larch, a private provider of housing, of which a small number of units were declared as social housing, should be de-registered on the basis it had ceased to be eligible for registration. This was on the basis of the regulator’s assessment that Larch no longer met the regulator's registration criteria relating to the Financial Viability Standard (and indeed had not done so for some time).
Larch appealed under s121 of the 2008 Act but lost on all points.
The judgment is of interest for a number of reasons but this note deals with structural points relating to the right of appeal, which was expressed in bare terms, without setting out either its scope, nature or the time limit for bringing it. Accordingly, the Court had to determine the correct approach to this statutory appeal: was it a full merits appeal or something else? Could the Court consider post decision evidence? What even was the time limit for appealing?
On these matters, the Court held that:
a) No time limit for an appeal against de-registration is provided for in section 121. Therefore the default time limit for bringing an appeal in CPR 52.12(2)(b) applies. This means that an appeal must be brought within 21 days after the date of the decision under challenge [§7]. b) Post decision evidence is irrelevant [§12]. c) As to the nature of the appeal (as the statute was silent on the question of scope or nature), the judge held, applying the reasoning of the CA in John Dee Limited v Commissioners of Customs & Excise 1995 WL 1081889 (CA), the function of the judge is not to re-take the decision to de-register or to substitute his or her decision for the decision that was taken by the Regulator. The test that the High Court should apply to an appeal is essentially (and subject to the "proportionality" point, below) the same as it would apply to the judicial review of an administrative decision. An appeal should succeed if the Regulator has acted irrationally, or if there has been a procedural irregularity which means that there has been a breach of natural justice. The appellate Court should also consider whether the Regulator took into account some irrelevant matter or had disregarded something to which they should have given weight [§20]. d) There is an express statutory duty to act proportionately when taking de-registration decisions. Accordingly, in an appeal under section 121, the appeal may be allowed on the basis that the decision to de-register was disproportionate. This is an obligation of result. However, even where, as here, it is for the court to assess whether regulatory action is proportionate, the weight to be given to the decision- maker's view will depend on the context, and may be considerable [§23].
Samantha Broadfoot KC acted for the Regulator. Her practice includes a wide range of regulatory and public law matters, and her CV can be viewed here.
