Public Authorities under the EIR: Fishing for Clarity

July 3rd, 2020

Is a private registered provider of social housing, a housing association, a public authority within the meaning of the Environmental Information Regulations 2004 and the Fish Legal line of authority (on which see here re the CJEU and here re the UT)? In Information Commissioner v Poplar Housing Association and Regeneration Community Association [2020] UKUT 182 (AAC) (ICO v Poplar Housing), Farbey J (CP) agreed with the First-tier Tribunal that it was not.

A registered provider of social housing is a landlord of low-cost rental accommodation. In Poplar’s case, it is a private body which both purchases and develops new properties and manages properties transferred to it from the local authority (Tower Hamlets LBC). Poplar owns and manages about 9,000 homes. All private registered providers have certain rights which ordinary landlords do not. These particularly include rights to seek certain orders in relation to anti-social behaviour, and other contexts addressing potentially problematic tenants who might otherwise simply be repeatedly moved on.

As is well-known, under Fish Legal and Article 2(2)(b) and (c) of the Directive, there are two main tests for whether or not a body is a public authority for the EIR: are they under the control of a public authority, or are they entrusted with special powers? The focus in the Poplar case was on special powers, there being no real suggestion of a control issue.

The core of the argument on appeal was whether or not – having regard to Cross v Information Commissioner & Cabinet Office [2016] UKUT 153 (AAC) – there was a cumulative requirement both of special powers and that they had been entrusted by legislation, having regard to para 52 of the CJEU’s judgment in Fish Legal: “which are entrusted, under the legal regime which is applicable to them, with the performance of services of public interest, inter alia in the environmental field, and which are, for this purpose, vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law”. Farbey J emphasised that the test was functional. Poplar was not a body ordinarily to be described as an administrative authority in the sense used by the CJEU. When read in light of the French language version, the CJEU was simply saying that the functions must be founded in national law, but that entities not bound to carry out the functions of administrative authorities were not to be equated with them. Entrustment and special powers were two separate concepts in the reasoning of the CJEU, as the UT had held in Cross (even though Cross did not bind subsequent UTs because it was not a three judge panel). Both had to be satisfied; any other approach would risk expanding the reach of the EIR too far. Farbey J declined to make a reference to the CJEU on the issue.

The mere existence of a scheme of statutory regulation did not convert a private provider into a public authority, and the scheme as applicable to registered providers did not do so. In addition, although obiter, Farbey J commented that powers given a registered social landlord which mitigated disadvantages that they had as against ‘ordinary’ landlords probably could not be considered as ‘special powers’ in the relevant sense. Poplar’s immunity from the EIR was upheld.

Rupert Paines acted for Poplar Housing.

 Christopher Knight

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