Defendant employed as caretaker of school and occupying property owned by council – Whether defendant’s tenancy a secure tenancy – Whether contract of employment contained implied provision requiring defendant to occupy dwelling-house for better performance of duties – Housing Act 1980 Schedule 1 para 2(1) – Judge making possession order – Appeal dismissed
The defendant was employed by Surrey County Council as the caretaker of a school and was allowed to occupy a property owned by the council, known as 1 Devon Road, Horsham, Walton-on-Thames. The property was not immediately adjacent to the school but was in the vicinity. However, it was far away enough that alarm bells ringing in the school could not be heard from it. After the defendant’s employment ceased he remained in the property, claiming a secure tenancy.
The council sought a possession order, relying on para 2 of Schedule 1 to the Housing Act 1985, which states that a tenancy is not a secure tenancy where the tenant is an employee of the landlord or of a local authority, and his contract of employment require him to occupy the dwelling-house for the better performance of his duties. The judge held that, although the terms on which the defendant had been employed had not been clearly set out in the contract of employment, it could be concluded, on the balance of probabilities, that it had been the council’s intention that the defendant was required by his contract of employment to live in the property for the better performance of his duties and, accordingly, it was an implied term. It was concluded that, therefore, para 2 of Schedule 1 to the Act applied and an order was made granting the council possession of the property. The defendant appealed, relying on Hughes v Greenwich London Borough Council [1993] 3 WLR 821, contending, inter alia, that since there were other houses in the vicinity owned by the council that he could equally have occupied, it could not be implied into his contract that he was to occupy the property for the better performance of his duties.
Held The appeal was dismissed.
1. A term that an employee was required to live in a property for the better performance of his duties would only be implied if there were compelling reasons to do so. It was important for the court to look at the nature of the duties that the employee was required to perform by the employer, and to ask whether or not the duties could be carried out practically if the employee did not live at the property in question.
2. The defendant was required to be on call for security reasons, deliveries, supervising contract workers and weekend and evening work. It was essential for him to live near the school and the only place he could live nearby was in accommodation offered to him as part of the terms of his employment by the council. Accordingly, it had correctly been concluded that para 2 of Schedule 1 to the Act applied and that the defendant did not have a secure tenancy: Hughes v Greenwich London Borough Council [1993] 3 WLR 821 distinguished.
Matthew Pascall (instructed by the solicitor to Surrey County Council) appeared for the plaintiffs; Alastair Panton (instructed by Downs, of Dorking) appeared for the defendant.
Thomas Elliott, barrister
