COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT/DIVISIONAL COURT
(Rt Hon Lord Justice Richards and Hon Mrs Justice Swift DBE)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWRENCE COLLINS
(now LORD COLLINS of MAPESBURY)
LORD JUSTICE ELIAS
| LONDON & QUADRANT HOUSING TRUST
|- and -
|THE QUEEN ON THE APPLICATION OF WEAVER
|- and -
EQUALITY & HUMAN RIGHTS COMMISSION
RICHARD DRABBLE (One of Her Majesty's Counsel) and MATTHEW HUTCHINGS (instructed by Messrs Brian McKenna & Co) for the Respondent
JAN LUBA (One of Her Majesty's Counsel) (instructed by Louise Curtis, Solicitor, Equality and Human Rights Commission) for the Intervenor
Hearing dates : 23 and 24 FEBRUARY 2009
Crown Copyright ©
LORD JUSTICE ELIAS :
"(a) that the management and allocation of housing stock by the defendant (including decisions concerning the termination of a tenancy) is a function of a public nature, with the effect that the defendant is to be regarded as a public authority in that respect for the purposes of the Human Rights Act 1998, section 6(3)(b);
(b) that the defendant is accordingly amenable to judicial review on conventional public law grounds in respect of its performance of the above function."
Social housing and registered social landlords.
7. In order to understand the background of this case I shall first consider the role of RSLs in the provision of social housing, and then consider the particular features of the Trust.
8. Social housing providers seek to provide affordable housing to those who cannot secure their housing needs in the market. It is government policy to provide such housing. Those on lower incomes are able to rent properties at below market value. RSLs provide about one half of the social housing in England and Wales.
"Virtually all provision of new social housing is delivered through RSLs and, under the transfer programme, ownership of a significant proportion of housing authority stock is being transferred from housing authorities to RSLs, subject to tenants' agreement. This means that, increasingly, RSLs will become the main providers of social housing. Consequently, it is essential that housing authorities work closely with RSLs, as well as all other housing providers, in order to meet the housing needs in their district and ensure that the aims and objectives of their homelessness strategy are achieved."
The Housing and Regeneration Act 2008.
The statutory provisions.
By subsection (3):
"...'public authority' includes -
(b) any person certain of whose functions are functions of a public nature"
This is subject to subsection (5):
"in relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private."
"all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it."
This would suggest that a function is a sub-species of those duties and powers; although whether and when a specific power or duty can be equated with a function is more problematic. The Divisional Court, in its declaration, referred to the act of termination of a tenancy as a "function".
(1) The purpose of section 6 is to identify those bodies which are carrying out functions which will engage the responsibility of the United Kingdom before the European Court of Human Rights. As Lord Nicholls put it in the Aston Cantlow case at paragraph 6:
"the purpose is that those bodies for whose acts the state is answerable before the European Court of Human Rights shall in future be subject to a domestic law obligation not to act incompatibly with Convention rights."
Lord Rodger para 160, Lord Hope, para 52, Lord Hobhouse, para 87, and Lord Scott, para 129, were to the same effect. (Unfortunately, as Lord Mance pointed out in YL after analysing the Strasbourg jurisprudence, the case law from the European Court of Human Rights provides no clear guidance for gleaning how that test should be applied in a case such as this, where there is no formal delegation of public powers.)
(2) In conformity with that purpose, a public body is one whose nature is, in a broad sense, governmental. However, it does not follow that all bodies exercising such functions are necessarily public bodies; many functions of a kind historically performed by government are also exercised by private bodies, and increasingly so with the growth of privatisation: see Lord Nicholls in Aston Cantlow, paras 7 - 8. Moreover, this is only a guide since the phrase used in the Act is public function and not governmental function.
(3) In determining whether a body is a public authority, the courts should adopt what Lord Mance in YL described as a "factor-based approach" (para 91). This requires the court to have regard to all the features or factors which may cast light on whether the particular function under consideration is a public function or not, and weigh them in the round. There is, as Lord Nicholls put it in Aston Cantlow (para.12) "no single test of universal application". Lord Bingham in YL observed (para 5) that:
"a number of factors may be relevant, but none is likely to be determinative on its own and the weight of different factors will vary from case to case."
(4) In applying this test, a broad or generous application of section 6(3)(b) should be adopted: per Lord Nicholls in Aston Cantlow para 11 cited by Lord Bingham in YL, para. 4 and by Lord Mance at para..91.
(5) In Aston Cantlow Lord Nicholls said (para 12) that the factors to be taken into account:
"include the extent to which in carrying out the relevant function
the body is publicly funded, or is exercising statutory powers, or
is taking the place of central government or local authorities, or is
providing a public service."
Some of these factors were the subject of more detailed analysis in YL. I shall briefly deal with them.
(6) As to public funding, it was pointed out that it is misleading to say that a body is publicly subsidised merely because it enters into a commercial contract with a public body (Lord Scott, para 27; Lord Neuberger para 141). As Lord Mance observed (para 105):
"Public funding takes various forms. The injection of capital or subsidy into an organisation in return for undertaking a non-commercial role or activity of general public interest may be one thing; payment for services under a contractual arrangement with a company aiming to profit commercially thereby is potentially quite another."
To similar effect, Lord Neuberger opined that (para 165):
"it seems to me much easier to invoke public funding to support the notion that a service is a function of "a public nature" where the funding effectively subsidises, in whole or in part, the cost of the service as a whole, rather than consisting of paying for the provision of that service to a specific person."
(7) As to the second matter, the exercise of statutory powers, or the conferment of special powers, may be a factor supporting the conclusion that the body is exercising public functions, but it depends why they have been conferred. If it is for private, religious or purely commercial purposes, it will not support the conclusion that the functions are of a public nature: see Lord Mance in YL at paragraph 101. However, Lord Neuberger thought that the "existence of wide ranging and intrusive set of statutory powers …is a very powerful factor in favour of the function falling within section 6(3)(b)" and he added that it will often be determinative (para.167).
(8) The third factor, where a body is to some extent taking the place of central government or local authorities, chimes with Lord Nicholls' observation that generally a public function will be governmental in nature. This was a theme running through the Aston Cantlow speeches, as Lord Neuberger pointed out in YL, para159. That principle will be easy to apply where their powers are formally delegated to the body concerned.
(9) The fourth factor is whether the body is providing a public service. This should not be confused with performing functions which are in the public interest or for the public benefit. As Lord Mance pointed out in YL (para 105), the self- interested endeavour of individuals generally works to the benefit of society, but that is plainly not enough to constitute such activities public functions. Furthermore, as Lord Neuberger observed (para 135), many private bodies, such as private schools, private hospitals, private landlords, and food retailers, provide goods or services which it is in the public interest to provide. This does not render them public bodies, nor their functions public functions. Usually the public service will be of a governmental nature.
"the mere fact that the public interest required a service to be closely regulated and supervised pursuant to statutory rules, cannot mean the provision of a service, as opposed to its regulation and supervision, is a function of a public nature. Otherwise, for example, companies providing financial services, running restaurants, or manufacturing hazardous materials, would ipso facto be susceptible to be within the ambit of section 6(1)."
What is a private act?
The decision of the Divisional Court.
"artificial to separate out the act of terminating a tenancy or indeed other acts in the course of management of a property from the act of granting a tenancy".
The contending arguments.
Is termination of a tenancy a private act?a tenancy
LORD COLLINS OF MAPESBURY:
LORD JUSTICE RIX:
"In providing a housing service we will comply with the regulatory framework and guidance issued by the Housing Corporation."
The relevant guidance was to be found in Housing Corporation Regulatory Circular 07/04, issued in July 2004 under section 36 of the Housing Act 1996, and then in its replacement Circular 02/07. The key passage, under the heading "Clarification of the Corporation's expectations: evictions", provides –
"Before using Ground 8, associations should first pursue all other reasonable alternatives to recover the debt."
"85…the claimed legitimate expectation is far too tenuous and general in character to be enforceable in public law, and there was in any event no breach of it.
86. The claimant herself has not given evidence that she had the expectation alleged or even that she knew of the term of the contract from which the expectation is said to have arisen…Thus the expectation is simply an artificial construct derived from the standard terms and conditions and attributed to the claimant, rather than a genuinely held expectation of her own…
87. As to the representation itself…I do not think that it can be read as a clear, unambiguous and unqualified promise or commitment to do everything set out in the guidance issued by the Housing Corporation. The guidance is by its nature guidance, not prescription. The regulatory provisions to which I have referred place the Housing Corporation in a strong position to ensure that it is substantially followed, but there is nothing that turns it into the equivalent of a statutory rule-book, and the Housing Corporation looks not just at whether the guidance has been followed but at whether alternative action has been taken to achieve the same objectives…The statement in [the Trust's] standard terms and conditions cannot have been intended to give the guidance a status it does not have under the statute or in the Housing Corporation's own practice. At most, Mr Arden's description of it as a "target duty" is more apt. Moreover, if the statement has the character of a promise, there is no reason why it should not be treated as a contractual promise, since it features in the contractual terms and conditions; but it is no part of the claimant's case that the statement is contractually binding. If it lacks the qualities to give it contractual force notwithstanding that it is located in a contract, I am not satisfied that it can properly be treated as having the qualities that justify its enforcement in public law as a legitimate expectation…
89. Thus, even if I were to accept the existence of a legitimate expectation in terms of the relevant guidance, that is a promise or commitment on the part of [the Trust] to pursue all reasonable alternatives to recover the debt before using ground 8, I would not find a breach of it on the facts of this case…I do not accept that the pursuit of all reasonable alternatives requires possession proceedings to be brought first on ground 10 or 11 before reliance can be placed on ground 8…
90. Looking at the overall history of [the Trust's] dealings with the claimant, I am not persuaded that [the Trust] failed to use all reasonable alternatives to recover the debt before using ground 8. In particular, in the light of the history of substantial and repeated defaults, [the Trust] was in my view entitled to take the view that reliance on ground 10 or 11 did not provide a reasonable alternative means of recovering the debt, and its reliance on ground 8 was in the circumstances in accordance with the relevant guidance and justified…"
"44. Applying YL v Birmingham City Council, Mr Drabble submitted that [the Trust] is to be seen as carrying out a governmental function, namely the management and allocation of state-subsidised housing…
45. Further, the particular acts of deciding to grant or terminate tenancies of social housing are decisions concerning the allocation of public housing resources and, as such, are not purely private in nature…"
Those were the submissions made on Mrs Weaver's behalf. On behalf of the Trust, Mr Arden submitted that –
"48…certain of the functions of an RSL may be public functions: for example, its statutory function in relation to anti-social behaviour orders, or functions carried out pursuant to specific statutory delegations by local housing authorities…These specific situations are to be distinguished, however, from the RSL's function of managing and allocating its own housing stock…
51. Even if the allocation of housing is a public function, Mr Arden submitted that the termination of a tenancy is not: it is a management decision and is governed by the terms of the contract…"
"62. Reference to the termination of a tenancy brings me to a final point on this issue, which is that if the allocation of housing stock by [the Trust] is a public function, then it would in my view be wrong to separate out "management" decisions concerning the termination of a tenancy as acts of a purely private nature. The allocation and management of the housing stock are to be regarded as part and parcel of a single function or as closely related functions. It would be artificial to separate out the act of terminating a tenancy, or indeed other acts in the course of management of a property, from the act of granting a tenancy. Moreover, as Mr Drabble submitted, the termination of a tenancy leads to the withdrawal of a publicly funded or subsidised resource from the tenant and is likely to trigger fresh duties of the local authority, and has been recognised in the context of judicial review as involving decisions capable of having a public law character. If [the Trust] is a public authority in relation to the grant of a tenancy, then it is equally a public authority in relation to the termination of the tenancy.
63. For those reasons I accept the claimant's case that [the Trust] is for relevant purposes a public authority within s.6(3)(b) of the Human Rights Act 1998…"
"in relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private."
However, his reasoning was that it was artificial to separate the act of termination from the act of granting a tenancy. If, therefore, the latter was a public function, or part of the overall public function of "management of a property", then the former was as well.
Strasbourg and domestic jurisprudence.
"I turn next to consider whether a parochial church council is a hybrid public authority. For this purpose it is not necessary to analyse each of the functions of a parochial church council and see if any of them is a public function. What matters is whether the particular act done by the plaintiff council of which complaint is made is a private act as contrasted with the discharge of a public function."
That is of course a reference to the "particular act" in section 6(5).
"the essentially contractual source and nature of Southern Cross's activities differentiates them from any "function of a public nature", even though it is (as often in the private sector) a matter of public concern, interest and benefit that reputable, efficient and properly regulated providers of such services should exist" (at para 120).
Lord Scott and Lord Neuberger agreed with Lord Mance.
"(iii) The act of providing accommodation to rent is not, without more, a public function for the purposes of section 6…irrespective of the section of society for whom the accommodation is provided.
(iv) The fact that a body is a charity or is conducted not for profit means that it is likely to be motivated in performing its activities by what it perceives to be in the public interest. However, this does not point to the body being a public authority. In addition, even if such a body performs functions, that would be considered to be of a public nature if performed by a public body, nevertheless such acts may remain of a private nature for the purpose of sections 6(3)(b) and 6(5).
(v) What can make an act, which would otherwise be private, public is a feature or a combination of features which impose a public character or stamp on the act. Statutory authority for what is done can at least help to mark the act as being public; so can the extent of the control over the function exercised by another body which is a public authority. The more closely the acts that could be of a private nature are enmeshed in the activities of a public body, the more likely they are to be public. However, the fact that the acts are supervised by a public regulatory body does not necessarily indicate that they are of a public nature. This is analogous to the position in judicial review, where a regulatory body may be deemed public but the activities of the body which is regulated may be categorised private.
(vi) The closeness of the relationship which exists between Tower Hamlets and Poplar [the local authority and the RSL respectively]. Poplar was created by Tower Hamlets to take a transfer of local authority housing stock; five of its board members are also members of Tower Hamlets; Poplar is subject to the guidance of Tower Hamlets as to the manner in which it acts towards the defendant.
(vii) The defendant, at the time of transfer, was a sitting tenant of Poplar and it was intended that she should be treated no better and no worse than if she remained a tenant of Tower Hamlets. While she remained a tenant, Poplar therefore stood in relation to her in very much the position previously occupied by Tower Hamlets.
66. While these are the most important factors in coming to our conclusion, it is desirable to step back and look at the position as a whole. As is the position on application for judicial review, there is no clear demarcation line which can be drawn between public and private bodies and functions. In a borderline case, such as this, the decision is very much one of fact and degree. Taking into account all the circumstances, we have come to the conclusion that while activities of housing associations need not involve the performance of public functions, in this case, in providing accommodation for the defendant and then seeking possession, the role of Poplar is so closely assimilated to that of Tower Hamlets that it was performing public and not private functions. Poplar therefore is a functional public authority, at least to that extent. We emphasise that this does not mean that all Poplar's functions are public. We do not even decide that the position would be the same if the defendant was a secure tenant. The activities of housing associations can be ambiguous. For example, their activities in raising private or public finance could be very different from those under consideration here. The raising of finance by Poplar could well be a private function" (emphasis added)."
"35. In our judgment the role that LCF was performing manifestly did not involve the performance of public functions. The fact that LCF is a large and flourishing organisation does not change the nature of its activities from private to public. (i) It is not in issue that it is possible for LCF to perform some public functions and some private functions…While the degree of public funding of the activities of an otherwise private body is certainly relevant as to the nature of the functions performed, by itself it is not determinative of whether the functions are public or private…"
"16. I turn next to consider whether a parochial church council is a hybrid public authority. For this purpose it is not necessary to analyse each of the functions of a parochial church council. What matters is whether the particular act done by the plaintiff council of which complaint is made is a private act as contrasted with the discharge of a public function."
Lord Nicholls, looking at the matter realistically, concluded that "there is nothing particularly "public" about this" (ibid). Similarly Lord Hope said that in the case of non "core" public authorities -
"Section 6(5) applies to them, so in their case a distinction must be drawn between their public functions and the acts which they perform which are of a private nature" (at 35).
His decision (at para 64) was that –
"The nature of the act is to be found in the nature of the obligation which the PCC is seeking to enforce. It is seeking to enforce a civil debt. The function which it is performing has nothing to do with the responsibilities which are owed to the public by the State."
Lord Hobhouse thought that it was not shown that PCCs perform any function of a public or governmental nature (at para 88). In any event, the section 6(5) question was to be answered in the defendants' favour:
"89…Is the nature of the relevant act private? The act is the enforcement of a civil liability. The liability is one which arises under private law and which is enforceable as a civil debt by virtue of the 1932 Act."
"14. The nature of the function with which this case is concerned is not in doubt. It is not the mere provision of residential accommodation but the provision of residential accommodation plus care and attention for those who, by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them."
Lord Bingham continued (at para 16):
"Counsel for the Birmingham City Council laid great emphasis on the fact that its duty under the Act [sections 21 and 26 of the National Assistance Act 1948] is to arrange and not to provide. This is correct, but not in my view significant. The intention of Parliament is that residential care should be provided, but the means of doing so is treated as, in itself, unimportant. By one means or another the function of providing residential care is one which must be performed. For this reason also the detailed contractual arrangements between Birmingham, Southern Cross and Mrs YL and her daughter are a matter of little or no moment."
Similarly, Lord Bingham said:
"20. When the 1998 Act was passed, it was very well known that a number of functions formerly carried out by public authorities were now carried out by private bodies. Section 6(3)(b) of the 1998 Act was clearly drafted with this well-known fact in mind. The performance by private body A by arrangement with public body B, and perhaps at the expense of B, of what would be a public function if carried out by B is, in my opinion, precisely the case which section 6(3)(b) was intended to embrace."
"52. At the same time, local authorities were placed under a duty to carry out an assessment of the need for community care services of any person who might be in need of them (section 47(1)(a) of the [Community Care Act 1990]) and then to decide whether those needs called for the provision by them of any such services: section 47(1)(b). "Community care services" include arranging or providing accommodation under section 21(1) of the 1948 Act: section 46(3). If the person may also need health care under the National Health Service Act 1977, the local authority must invite the relevant health body to assist in the assessment. A large slice of the social security budget was transferred to local authorities to enable them to meet these new responsibilities.
53. The appellant's case was a good example of how the system was supposed to work…The local authority arranged the placement with the care home provider and undertook to meet the charges under the tripartite contractual arrangements described above. The local authority has a continuing duty of assessment and remains responsible for the resident's welfare. The local NHS primary care trust assessed her health care needs, and found them to be in the high band, entitling her to a weekly contribution towards the nursing component in her care…"
Thus Baroness Hale's analysis is the same as Lord Bingham's, save that she also explains the ramifications of those statutory underpinnings which emphasise the importance of care.
"65…While there cannot be a single litmus test of what is a function of a public nature, the underlying rationale must be that it is a task for which the public, in the shape of the state, have assumed responsibility, at public expense if need be, and in the public interest.
66. One important factor is whether the state has assumed responsibility for seeing that this task is performed…
67. Another important factor is the public interest in having that task undertaken. In a state which cares about the welfare of the most vulnerable members of the community, there is a strong public interest in having people who cannot look after themselves, whether because of old age, infirmity, mental or physical disability or youth, looked after properly. They must be provided with the specialist care, including the health care, that they need…
68. Another important factor is public funding. Not everything for which the state pays is a public function…But providing a service to individual members of the public at public expense is different. These are people for whom the public have assumed responsibility…
69. Another factor is whether the function involves or may involve the use of statutory coercive powers…
71. Finally, then, there is the close connection between this service and the core values underlying the Convention rights and the undoubted risk that rights will be violated unless adequate steps are taken to protect them."
She briefly referred to section 6(5) at para 73.
"29. There are, in my opinion, very clear and fundamental differences. The local authority's activities are carried out pursuant to statutory duties and responsibilities imposed by public law. The costs of doing so are met by public funds, subject to the possibility of a means tested recovery from the resident. In the case of a privately owned care home the manager's duties to its residents are, whether contractual or tortious, duties governed by private law. In relation to those residents who are publicly funded, the local and health authorities become liable to pay charges agreed under private law contracts and for the recovery of which the care home has private law remedies…
30. As it seems to me, the argument based on the alleged similarity of the nature of the function carried on by a local authority in running its own care home and that of a private person running a privately owned care home proves too much. If every contracting out by a local authority of a function that the local authority could, in the exercise of a statutory power or the discharge of a statutory duty, have carried out itself, turns the contractor into a hybrid public authority for section 6(3)(b) purposes, where does this end?...
31. These examples illustrate, I think, that it cannot be enough simply to compare the nature of the activities being carried out at privately owned care homes with those carried out at local authority owned care homes. It is necessary to look also at the reason why the person in question, whether an individual or corporate, is carrying out those activities. A local authority is doing so pursuant to public law obligations. A private person, including local authority employees, is doing so pursuant to private law contractual obligations…"
"32. This regulatory framework is in place. A feature, or consequence, of it is that an obligation by Southern Cross to observe the Convention rights of residents is an express term of the agreement between the council and Southern Cross and YL. Any breach by Southern Cross of YL's Convention rights would give YL a cause of action for breach of contract under ordinary domestic law. No one has suggested that the contractual arrangements between the council and Southern Cross and between Southern Cross and YL are not typical. There is, in my opinion, no need to depart from the ordinary meaning of "functions of a public nature" in order to provide extra protection to YL and those like her…"
Those remarks have resonance for the contractual situation in the present case, to which I will return.
"34. As to the act of Southern Cross that gave rise to this litigation, namely, the service of a notice terminating the agreement under which YL was contractually entitled to remain in the care home, the notice was served in purported reliance on a contractual provision in a private law agreement. It affected no one but the parties to the agreement…"
"there may be certain essentially state or governmental functions, particularly involving the exercise of duties or powers, for the manner of which the state will remain liable, notwithstanding that it has delegated them to a private law body."
However, that principle requires either that the body is established and capitalised by the state for state purposes and armed with state powers, or that the functions of the state are non-delegable. However, neither principle appeared to apply to private care homes or the provision of care and accommodation. Even where a body is provided with special powers, that did not mean that they amounted to functions of a public nature, as distinct from being conferred for private, religious, or purely commercial purposes.
"116. In providing care and accommodation, Southern Cross acts as a private, profit-earning company. It is subject to close statutory regulation in the public interest. But so are many private occupations and businesses, with operations which may impact on members of the public in matters as diverse for example as life, health, privacy or financial well-being. Regulation by the state is no real pointer towards the person regulated being a state or governmental body or a person with a function of a public nature, if anything perhaps even the contrary. The private and commercial motivation behind Southern Cross's operations does in contrast point against treating Southern Cross as a person with a function of a public nature."
Moreover, while it is not possible to distinguish between paying and subsidised residents in a local authority care home, because the local authority is a core authority, it is incongruous to distinguish between self-paying and publicly funded residents in a private home (at para 119). He therefore concluded that the company in providing care and accommodation to YL in its home was not exercising functions of a public nature within section 6(3)(b). He did not consider section 6(5).
"It is thought to be desirable, in some circumstances, to encourage core public authorities to contract-out services, and it may well be inimical to that policy if section 6(1) automatically applied to the contractor as it would to the authority. Indeed, unattractive though it may be to some people, one of the purposes of contracting-out at least certain services previously performed by local authorities may be to avoid some of the legal constraints and disadvantages which apply to local authorities but not to private operators…[T]he fact that there are competing arguments makes it hard to justify the courts resolving the instant issue by reference to policy" (at para 152).
"the funding effectively subsidises, in whole or in part, the cost of the service as a whole…Thus, it appears to me to be far easier to argue that section 6(3)(b) is engaged in relation to the provision of free housing by an entity all of whose activities are wholly funded by a local authority, than it is in relation to the provision of housing by an independently funded entity to impecunious tenants whose rent is paid by the local authority."
"Part VI of the Housing Act 1996 gives no-one a right to a house. This is not surprising as local housing authorities have no general duty to provide housing accommodation. They have a duty periodically to review housing needs in their area (Housing Act 1985, s 8). They have power to provide housing accommodation by building or acquiring it (1985 Act, s 9). They also have power to nominate prospective tenants to registered social landlords or to others. They are required to have an allocation policy which applies to selecting tenants for their own housing or nominating people for housing held by others (Housing Act 1996, s159(2)). But this does not mean that they have to have available any particular quantity of housing accommodation, still less that they must have enough of it to meet the demand, even from people in the "reasonable preference" groups identified in section 167(2). In some areas there may be an over-supply of council and social housing. In others there may be a severe under-supply. Newham is one of those others."
Baroness Hale emphasises the distinction between allocation and provision.
Discussion and conclusion.
"If the authority itself provides accommodation, it is performing a public function…However, if a body which is a charity, like LCF, provides accommodation to those to whom the local authority owes a duty under s 21 in accordance with an arrangement under s 26, it does not follow that the charity is performing a public function."
There is no suggestion in YL or Heather that a charity is other than in the private world.