Housing association management transfers decisions are within the scope of public law, a robust policy is needed to ensure lawful decisions are made.
It is well established that for the purpose of making decisions about allocating social rented housing[1] and mutual exchanges[2], housing associations are a public body in English & Welsh law (a separate legislative regime exists for housing associations in Scotland). Recent case law[3] confirms that this also extends to decisions made about management transfers.
A recent judicial review decision provides some key learning for housing associations (also stock holding local authorities) in respect of management transfers.
Any decision made by a housing association in respect of a management transfer can be subject to judicial review. All such decisions will need to be made using relevant evidence and accurate interpretation of the all relevant facts. Housing associations will need to ensure decisions accord with legislation relating to social housing allocations, mutual exchanges and management transfers. When the facts about the circumstances of a tenant who is seeking a management transfer are uncertain, a housing association should give them the benefit of the doubt. When a housing association is considering rejecting a management transfer request, they should give a tenant an opportunity to comment on the reasons for refusal, prior to finalising a decision. It would good practice for a housing association inform the tenants of the right to pursue judicial review when adverse decisions about management transfers made against them.
Housing associations should have a policy that explains how they make decisions about requests from tenants for a management transfer. Such a policy will need to have regard to a housing associations’ housing allocation policy and also its tenancy policy. A management transfer policy could be a standalone document or could be incorporated into either of the aforementioned policies or another existing policy. A management transfer policy should explain:
• Who can (and cannot) make a request for a management transfer and who at the housing association shall make decisions about such requests
• What does (and doesn’t) constitute a management transfer
• When management transfer requests can be made
• Where management transfer request should be submitted to
• Why a request for a management transfer might be accepted or rejected.
• How management transfer requests will be prioritised, with those that have an urgent need to move (such as tenants who are at risk of domestic abuse) ideally being prioritised over others who needs are less urgent.
Tenants pursuing a management transfer are entitled to expect their housing association to provide them with clear and relevant advice about their housing options and support to maintain their tenancy. It would be contrary to regulatory directions[4] for (English) housing associations to encourage tenants to end their tenancy and seeking homelessness assistance from a local authority, as an alternative to a management transfer.
Housing associations can benefit from the recent case law about management transfers by taking the following action:
1. Provide refresher training to employees on public law decision-making principles and how this relates to decisions made about management transfers.
2. Review existing management transfer policies and amend as necessary.
3. Review existing housing options advice and tenancy support provision to ensure this is relevant to tenants seeking a management transfer.
[1] R (Weaver) v London & Quadrant Housing Trust [2008] EWHC 1377 (Admin)
[2] R (A McIntrye & I McIntrye) v Gentoo Group Limited [2010] EWHC 5 (Admin)
[3] R (TRX) v Network Homes Limited [2022] EWHC 456 (Admin)
[4] Regulator of Social Housing, Tenancy Standard, April 2012
