Landlord and tenant – Tenancy agreement – Service occupancy – Claimant local authority seeking possession of bungalow occupied by former school caretaker for better performance of duties – Whether defendant’s occupation was service occupancy or lease – Whether claimant entitled to rely on exception in para 2 of Schedule 1 to the Housing Act 1985 – Whether public law duties affecting claimant’s right to possession – Whether claimant entitled to possession of bungalow – Claim allowed
In 2003, the defendant became the caretaker of a school and moved with his family into a property owned by the claimant local authority known as the School Bungalow, Cock Lane, Hoddesdon. He entered into a “service occupancy – tenancy agreement” with the claimants which recited that the defendant had been appointed to work at the school and that, as a condition of his employment, he was required to live in the bungalow “better to perform your employment responsibilities”. The right to occupy terminated automatically on the end of his employment.
In 2011, the defendant sustained a back injury and subsequently refurbished and modified the bungalow to accommodate his physical impairment with the claimants’ consent. In September 2014, the defendant’s job description was revised. It stated that he might be required to live on site in school-provided accommodation and listed various tasks that would be better performed if he lived on, or near, the site. Some of those tasks were in fact contracted out.
In June 2015, the defendant was dismissed for gross misconduct and an appeal against that decision was dismissed. The claimants served a notice to quit requiring the defendant to give up possession of the bungalow. In September 2016, the school became an academy and was owned and run by a trust but the claimants retained the bungalow. When the defendant refused to leave, the claimants brought proceedings for possession.
Held: The claim was allowed.
(1) The defendant had agreed to be employed under a contract of employment which required him to occupy the bungalow for the better performance of his duties and to enter into an agreement for the occupation of the bungalow. As a matter of fact, the occupation was, at the inception of the agreement, for the better performance of the defendant’s duties. It was not a capricious requirement and created a service occupancy, not a lease. The nature of the defendant’s occupation did not change when his job description was amended in September 2014. The terms of his contract of employment were not expressly varied and there was no waiver of those terms. It had been made clear to the defendant that he was required to continue living in the bungalow to promote the better performance of his duties. That position did not change after his dismissal. Even though he had remained in the property for two years afterwards, the claimants had done nothing to suggest that they wanted to grant the defendant a new right to occupy.
Section 5(1A) of the Eviction Act 1977 did not apply to the mechanism by which the agreement ended. Its evident policy was to ensure that, where a tenancy or licence was terminable by a notice to quit, a minimum period of notice was given. That policy did not apply if the licence was terminable without giving notice to quit. Section 5(1A) only applied to the termination of a licence if the agreement being terminated was a periodic licence and the notice in question determined that licence. No notice to quit was required to terminate the present agreement as it terminated automatically in accordance with its terms when the defendant was dismissed. Section 5(1A) only applied where a notice to quit was the mechanism used to bring the arrangement in question to an end. There had been no breach of section 5(1A).
(2) Paragraph 2 of Schedule 1 to the Housing Act 1985 provided that a tenancy was not a secure tenancy if the tenant was an employee of a local authority and the contract of employment required them to occupy premises for the better performance of their duties. In the present case, the exception applied at the inception of the agreement and it continued to apply after September 2014. Nothing that had happened since the defendant’s dismissal was evidence of any intention by the claimants to enter into a new occupancy agreement or tenancy with the defendant.
(3) In taking an active decision to serve notice to quit, the claimants exercised a function to which the public sector equality duty in section 149 of the Equality Act 2010 and the duty to make arrangements to safeguard and promote welfare in section 11 of the Children Act 2004 could apply in theory. However, neither of those duties conferred a private law right on the defendant. Even if he could have applied for judicial review of the decision to serve the notice to quit on the grounds that the claimants had not complied with their public law duties, any such failure would not provide a defence to the claim for possession.
If that was wrong, the claimants would have been in breach of section 11 of the 2004 Act in serving the notice because they failed to consider the presence of the defendant’s children in the bungalow or the effect of the service of the notice to quit on their welfare. Turning to section 149, there was no evidence that the defendant had the protected characteristic of disability at the date when the notice to quit was served. Although the claimants were aware that modifications had been made to the property, there was nothing to suggest that the defendant’s ability to perform his duties was affected by any disability.
(4) The defendant had failed to establish that the exception in para 2 of Schedule 1 to the Housing Act 1985 was incompatible with art 14 of the European Convention on Human Rights, read with art 8. Service occupiers did not have security of tenure under the 1985 Act because they were required to occupy accommodation as a condition of their employment. Even if being an occupier of tied accommodation owned by a local authority was a status, it was a characteristic which the defendant had chosen as he had accepted an offer of a job which he knew would require him to live in the bungalow. The exception was rational: if a dwelling was only let for the purpose of a service occupancy, there was no reason why the occupier should have security of tenure. If the employment ceased, the local authority employer could house any replacement there.
Andrew Lane and Tara O’Leary (instructed by Hertfordshire County Council Legal Services) appeared for the claimants; Toby Vanhegan and Riccardo Calzavara (instructed by Arkrights Solicitors) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read transcript: Hertfordshire County Council v Davies
