The Law Commission

The Law Commission is an advisory non-departmental public body sponsored by the Ministry of Justice. It is the statutory independent body created by the Law Commissions Act 1965 to keep the law under review and to recommend reform where it is needed. To quote its website: “Each area of law we will examine has been identified as being flawed and at risk of creating confusion and injustice.”  Quite.

Page 188 para. 9.99 of the Commission’s Consultation Paper No 162 promulgated in 2002 states: “In view of our proposals relating to the type II agreement, we are not convinced that there remain sound policy arguments for the continued exclusion of the residents of almshouses from statutory regulation.” Para. 9.100 states: “We provisionally propose that the residents of almshouses should not be excluded from our proposed statutory scheme.” The relevant scheme envisaged the upgrading of licenses to secure tenancies.

In 2006 The Law Commission published Renting Homes: the Final Report (Law Com No 297) which confirmed its 2002 proposals in a draft Bill. However, almshouses were not addressed despite the 2002 proposals being apparently pre-empted by Schedule 2 Part II Ground 11 of the Housing Act 1985 ante. We can only conjecture that the Law Commission was retrospectively dissuaded by Gray v Taylor. In the event no legislative action ensued.

The Law Commission seems to be returning its attention to this area of the law, viz.:

We might expect among other things a ruling as to the identification of hybrid authorities vis-à-vis Human Rights; however the timescale – late 2015 – is hardly favourable to almshouse residents. But there’s more and it is of significance:-

At 5.43 footnote no.59 says:

It has been argued that, because courts themselves are “public authorities”, the Act also requires courts to make judgments in accordance with Convention rights when considering disputes between private persons – the doctrine that the Act gives the Convention rights “horizontal effect”. This approach appears to have been endorsed, obiter, by Waller LJ in his judgment in McLellan v Bracknell Forest  [2001] EWCA Civ 1510 at 42];[2002] 1 All ER 899. This is an important jurisprudential issue, which we do not consider necessary or appropriate to consider in detail in this paper. We simply note here that if Convention rights do indeed have horizontal effect, the approach of the courts as described [elsewhere] may mean that procedural space would have to be found at some level for considerations of proportionality in respect of applications by private landlords for possession orders.

By reason of the inviolate and superseding provisions of the European Convention on Human Rights, that last expression “private landlords” would seem to capture almshouse trustees as well, to our obvious, albeit hypothetical, advantage.

Go now to Mediation Services