Local authority – Housing – Countryside rangers – Contracts of employment requiring respondents to live in accommodation provided by appellants – Respondents exercising right to purchase freeholds – Appellants denying right to buy – Whether properties excluded from right to buy as being occupied in connection with employment – Appeals allowed
Three of the four respondents were employed by the appellants as countryside rangers. The fourth respondent was the widow of a ranger who had been similarly employed, but had died after the commencement of proceedings. They all lived in properties owned by the appellants that were provided under their contracts of employment.
The respondents served notices under section 122 of the Housing Act 1985 claiming to exercise the right to buy under section 118. The appellants served notices under section 124 of the 1985 Act denying that the respondents had a right to buy on the ground that the properties fell within the exclusion in para 2(1) of Schedule 1 to the 1985 Act as premises occupied in connection with employment.
The respondents brought claims in the county court under section 181 of the 1985 Act for the determination of that issue. The appellants argued that, since the wording of para 2(1) looked only to the terms of the contract of employment, which, in each case, required the employee to occupy the property and stated that the requirement was for the better performance of his duties, the exception should apply. Having considered the contract and the facts in each case, the judge found that the respondents’ occupation of the properties could not be regarded as necessary for the better performance of their work and that they did not therefore come within the exception. He granted declarations that the respondents were entitled to purchase the freeholds of their houses in accordance with the right to buy in Part V of the 1985 Act. The appellants appealed.
Held: The appeals were allowed.
The appellants had discharged the burden of establishing that the occupation of the house provided to each of the respondents fell within para 2(1) so that none of them had a right to buy.
The provision laid down two distinct conditions. First, the contract of employment had to require the employee to occupy the dwelling-house, which looked only to the terms of the contract. The question was simply whether or not the contract contained such a requirement or not. Second, the requirement had to be for the better performance of the employees’ duties, which raised an issue of fact beyond the contract. The essential question was whether the required occupation of the property was intended to promote, and was reasonably capable of promoting, the better performance of the employee’s duties: Fox v Dalby (1874) LR 10 CP 285; Glasgow Corporation v Johnstone [1965] AC 609; Commissioner of Valuation for Northern Ireland v Fermanagh Protestant Board of Education [1969] 1 WLR 1708; and Langley v Appleby (Inspector of Taxes) [1976] 3 All ER 391 considered.
The court would look at all the circumstances in deciding whether the required occupation was for the better performance of the employee’s duties, including: (i) the reasons given for the imposition of the requirement to occupy the property; (ii) the considerations taken into account in imposing that requirement; and (iii) the factual history. If those considerations led to the conclusion that occupation of the property was reasonably capable of leading to better performance, it was immaterial that the particular employee had not used the property in such a way as to produce that better performance in practice.
The contractual requirement had to exist, and occupation had to be for the better performance of the employee’s duties, when notice was given under the 1985 Act. However, if the condition was satisfied when the contractual requirement was first imposed, then, in the absence of a variation or fundamental change of circumstances, it would continue to be satisfied thereafter.
There was no reason to depart from, or to put a gloss on, the statutory language, and the judge had been wrong to equate “better” with “proper” or “efficient” performance of the duties. “Better” was a true comparative, the question being whether the requirement to occupy the house was for the better performance of the employee’s duties as compared with the position if there were no such requirement.
Claire Andrews (instructed by the legal department of Surrey County Council) appeared for the appellants; Jerome Wilcox (instructed by Courtney Campbell Cooney Solicitors) appeared for the respondents.
Eileen O’Grady, barrister
