Secure tenant — Local authority-owned property — Dwelling-house occupied by teacher entitled to free accommodation under employment contract — Accommodation outside curtilage of school — Whether employee qualified for right to buy as secure tenant — Whether exception applied because contract of employment requiring employee to occupy dwelling-house for better performance of duties — County court holding that employee having right to buy — Decision upheld by Court of Appeal
The respondent, H, was the headteacher of Staplefield Place School in Sussex from July 1958 until December 1989. His contract of employment entitled him to free board and lodging. In July 1963 he moved into a newly-built “Head-master’s house” called “The Cedars”, which was within the school grounds but not within the curtilage of the school buildings. He and his wife had remained in occupation ever since. The school was eventually converted to a residential and teaching annexe to another nearby school and the council required possession of “The Cedars” to supplement that accommodation.
H argued that he was a secure tenant as defined in section 79 of the Housing Act 1985 and so qualified for the “right to buy” under section 118 of the Act. An exception to the right to buy was contained in para 2(1) of Schedule 1, to the Act, which provided that a tenancy was not a secure tenancy if the tenant was an employee of a local authority and his contract of employment required him to occupy the dwelling-house for the better performance of his duties. The county court held that H did have the right to buy but the council appealed against that decision to the Court of Appeal.
Held The appeal was dismissed.
1. The statutory exception, when analysed, contained two pre-conditions. The first was that the contract of employment required the employee to occupy the dwelling-house. The second was that that requirement was “for the better performance of his duties”. On the facts of the present case, if H’s contract of employment contained any such requirement, it was included for that purpose. Thus the result of the appeal turned upon whether the first precondition was satisfied.
2. A “right to buy” in the context of local authority-owned properties had not been thought of when H’s contract was formulated and so there was no expressed obligation to occupy “The Cedars”. Therefore, the question was whether such a requirement was an implied term of his contract.
3. While the parties might have a mutual intention and expectation that a particular state of affairs should exist throughout the duration of the contract and such continued existence might be necessary in order to give business efficacy to that contract, that did not lead to the inevitable conclusion that it was necessary for there to be a contractual term to that effect.
4. A term that an employee should occupy a particular house could be implied only when such occupation was essential for the performance of his duties; otherwise there would be no scope for the implication of such a term. When the occupation was required only for “the better performance” of his duties, then an express term was needed. There was no basis on which a term could be implied.
Frederic Reynold QC and Paul Stewart (instructed by the solicitor to Greenwich London Borough Council) appeared for the appellant council; and Michael Hart QC and Christopher Tidmarsh (instructed by the National Association of Head Teachers) appeared for the respondent.
