Landlord and tenant – Tenancy agreement – Service occupancy – Respondent local authority seeking possession of bungalow occupied by former school caretaker for better performance of duties – High Court deciding respondent entitled to possession of bungalow – Appellant appealing – Whether judge erring in law in determining that the respondent’s failure to comply with statutory duties under section 11 of the Children Act 2004 could not provide defence to its claim for possession – Appeal dismissed
In 2003, the appellant became the caretaker of a school and moved with his family into a school bungalow owned by the respondent local authority. Under a “service occupancy – tenancy agreement”, as a condition of his employment, the appellant was required to live in the bungalow “better to perform your employment responsibilities”. The right to occupy terminated automatically at the end of his employment. In 2011, the appellant was injured and refurbished and modified the bungalow to accommodate his physical impairment with the respondent’s consent. The appellant’s job description was subsequently revised to state that he might be required to live on site in school-provided accommodation.
In June 2015, the appellant was dismissed for gross misconduct and an appeal against that decision was dismissed. The respondent served a notice to quit requiring the appellant to give up possession of the bungalow. When he failed to do so, the respondent commenced possession proceedings in the county court. The case was transferred to the High Court on the appellant’s application. The High Court made an order for possession holding, amongst other things, that, although the respondent had been in breach of section 11(2) of the Children Act 2004 by giving no thought at all to the effect of the service of the notice to quit on the welfare of the appellant’s children, the duty under section 11(2) did not confer a private law right on the appellant and a breach of the duty did not provide a defence to the possession claim: see [2017] EWHC 1488 (QB); [2017] PLSCS 142.
The appellant appealed. The sole issue was whether the judge had erred in law in determining as a matter of principle that the respondent’s failure to comply with its statutory duty under section 11 could not provide a defence to its claim for possession.
Held: The appeal was dismissed.
(1) Section 11 placed duties on a local authority to ensure that its functions, and any services contracted out to others, were discharged with regard to the need to safeguard and promote the welfare of children. The obligation imposed on those subject to the statutory duty under section 11 was to ensure that decisions affecting children had regard to the need to safeguard them and promote their welfare. However, the reach or impact of the section 11(2) duty was qualified both by the nature of the function being carried out and what the particular circumstances required: Huzrat v Hounslow London Borough Council [2013] EWCA Civ 1865; [2014] HLR 17 and Nzolameso v Westminster CC [2015] UKSC 22; [2015] PTSR 549 considered.
(2) The relevant function carried out by the respondent in the present case was the decision to serve the notice to quit, followed by its service. The appellant’s pleaded challenge was only to the service of the notice to quit. Accordingly, he was not entitled to argue that there had been a failure to comply with the section 11 duty by reference to some other functions carried out by the respondent, either in the appeal or on remittal if that were to be the outcome. Though service of the notice to quit was not necessary to bring the service occupancy agreement to an end, at the point when that agreement ended, the respondent could have let the appellant stay in the bungalow with his family. The making of the discretionary decision to serve the notice to quit was therefore an exercise of a function which left room for a consideration of the children’s welfare. However, in principle it was open to someone in the position of the appellant to raise a section 11 defence to possession proceedings brought by a local authority, notwithstanding the lack of a private law right to remain in possession. It made sense for issues about the wellbeing of children caught up in possession proceedings to be dealt with at the same time and before the same tribunal whether they were raised by reference to article 8 of the European Convention on Human Rights or section 11 of the 2004 Act: Manchester County Council v Pinnock [2010] UKSC 45; [2010] 3 EGLR 113, Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] PLSCS 59; 2AC 186, Doherty v Birmingham City Council [2008] UKHL 57; [2009] 1 AC 367, Mullen v Salford City Council [2010] EWCA 336; [2010] PLSCS 99 and Kay v London Borough of Lambeth [2006] UKHL 10; [2006] 2 AC 465 considered.
(3) While the judge appeared to have reached the wrong view on that issue in the present case, the possession order should not be set aside or the matter remitted for a rehearing. The breach of the section 11 duty had no relevance on the facts to the substantive matter at issue in these proceedings, namely whether an order for possession should be made or not. There was nothing that supported, even at the pleadings stage, a case that any consideration of the position of the children when the notice to quit was served would have made any difference to the outcome of the action for possession. The most the appellant could have hoped for, even if his section 11 defence had been successful, was a temporary reprieve; the present legal proceedings meant he, and his family, had remained in the bungalow for nearly three years since his licence to occupy was terminated. If the respondent had considered the best interests of the children by reference to section 11 before serving the notice to quit, the outcome for the appellant would inevitably have been the same.
Toby Vanhegan and Riccardo Calzavara (instructed by Arkrights Solicitors, of Watford) appeared for the appellant; Andrew Lane and Tara O’Leary (instructed by Hertfordshire County Council Legal Services) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read transcript: Hertfordshire County Council v Davies
