Issue 1: Do homeless persons have a right to view accommodation offered to them before deciding whether to accept it?
An applicant for Pt VII accommodation could derive an enforceable right to view property offered by a local authority before deciding whether to accept it: (1) from statute; (2) implicitly by demands of procedural fairness; (3) from the local authority’s duty to perform its functions reasonably according to the Wednesbury principle.
There is no statutory right to be heard in this situation, and so (1) does not apply. Nor does (2), as this is an ‘application’ case (one in which a decision will grant or withhold a benefit not previously enjoyed, and in which there is merely an entitlement to apply), where an applicant enjoys only the right to benefit from a decision in his favour, and has no right to be heard as such. Similarly for (3), denying an applicant opportunity to view a property does not disable the Council from an appreciation of all the factors relevant to its decision as to the suitability of the property.
Issue 2. Do the Directive and Regulations apply in this case?
Three questions were considered and answered in the affirmative: (1) Do the Directive and Regulations apply to contracts relating to land?; (2) Do the Directive and Regulations apply to public authorities such as the Council?; (3) Is the Council a “seller or supplier” and are the respondents “consumers” within the meaning of the regulations and the Directive?
(1) The Directive’s dominant purpose (and thus also the Regulations) is consumer protection. There is no justification for excluding contracts relating to land from the scope of “goods and services”: to do so would be to cut across the grain of the Directive’s aim to provide a high level of protection.
While English common law recognises a distinction between real and personal property, other language texts of the Directive use terminology that refers to immovable goods as readily as movables. “European legislation has to be read as a single corpus of law binding across the member states”. [at 78] Further, the text and travaux preparatoires of the Directive indicate that the drafters attached no significance to the difference between land and other transactions and proceeded on the basis that the Directive would apply to both. Such materials powerfully suggest that if there were to be exclusions from the scope of the Directive, they would have been specifically provided for.
(2) The Council is not taken out of the Directive’s scope solely due to its status as a public or governmental body. Bettercare Group Ltd ( C.A.T. 7) considered, the true question is “do the Council’s Pt VII functions fall within the meaning of ‘trade, business or profession’ in Art 2(c) of the Directive”? Albany International ( E.C.R. I-5751) considered, as the activity engaged in centrally could be carried on by a private undertaking in order to make a profit (the grant of a tenancy for rent) the answer is yes.
(3) Given the conclusion to question (2), it is clear that the Council is a “seller or supplier” and the respondents are “consumers” within the meaning of the Regulations and the Directive.