Possession Proceedings

June 22nd, 2017 by James Goudie KC

In Hertfordshire County Council v Davies [2017] EWHC 1488 (QB) Mrs Justice Elisabeth Laing rejected a variety of defences and held that the Council was entitled to possession of the School Bungalow (“the Bungalow”) in Hoddesdon in its area. The Defendant moved into it with his family when he became the caretaker at Sheredes School (“the School”). Eventually, after a disciplinary hearing, the Council dismissed the Defendant for gross misconduct. He appealed against the decision to dismiss him, unsuccessfully.   The Council served a notice to quit requiring the Defendant to give up possession. Thereafter the Council issued proceedings for possession. The claim was in due course transferred to the High Court because one of the remedies sought by the Defendant in his counterclaim was a declaration that paragraph 2 of Schedule 1 to the Housing Act 1985 (“the 1985 Act”) is incompatible with his rights conferred by the European Convention on Human Rights.

When the Defendant started work, the School was managed by the Council in the discharge of its education functions. Later the School became an Academy. It is now owned and run by an Academy Trust (“AT”). The Council lets the school grounds to the AT. It has excepted the Bungalow from that lease and retained it.

The Defendant raised various arguments concerning his tenure of the Bungalow to defend the possession proceedings. He has also pleaded that the service of the notice to quit was unlawful because it was a public law decision and the Council failed to have regard to various matters when deciding to serve the notice to quit. As a matter of principle, the Defendant was entitled to raise public law challenges as a defence to that decision, see Wandsworth London Borough Council v Winder [1985] AC 461. There must, however, be a link between the breach of public law which is asserted and a private law right.

There was a “Service Occupancy – Tenancy Agreement”. It granted the Defendant exclusive possession of the Bungalow.  Nonetheless, the question arose whether this was a tenancy or a licence because the Defendant was required to occupy the premises in order better to perform his duties as an employee.

The first issue the Judge addressed was as to the legal nature of the Defendant’s occupation of the Bungalow immediately before he was dismissed and after that. She held (paragraph 98) that the agreement at its inception created a service occupancy, not a lease; and (paragraph 100) that the nature of the occupation did not change thereafter.  The express terms of the Defendant’s contract of employment were not expressly varied.  There was no waiver by the Council of those terms.  The requirement that the Defendant live in the Bungalow was intended to promote, and was reasonably capable of promoting, the better performance of his duties as set out in his job description.  The Council had done nothing to suggest that it wished to grant the Defendant a new right to occupy.  The licence terminated automatically in accordance with its terms when the Defendant was dismissed (paragraph 102).  There was no breach of the Protection from Eviction Act 1977.

The second issue was whether the Council was entitled to rely on the exception from secure tenancies in paragraph 2 of Schedule 1 to the 1985 Act. The Judge held (paragraph 103) that it was.

The third issue was, leaving aside the Human Rights Act 1998, what public law duties, if any, affected the Council’s right to seek possession, whether they were breached, and, if so, with what consequences. The Judge held (paragraph 105) that there was no failure to comply with public law duties that would provide a private law defence to the claim for possession.

Finally, the Judge concluded (paragraph 113) that the 1985 Act exemption was not incompatible with Article 14 of the ECHR read with Article 8.

The Council therefore succeeded notwithstanding that it no longer runs the School, so that it does not require the Bungalow for a new caretaker. However, the Defendant, like other service occupiers, always knew that he would have to leave the Bungalow when his employment ended, and the only reason why the Council did not include the Bungalow in the lease to the School was because the Defendant was still in the Bungalow. It is in the public interest that the Council should recover the Bungalow now that the Defendant is no longer employed, so that it can decide, in conjunction with AT, how best the Bungalow can be used for public purposes.

Moreover, it made no difference in principle that the Council has no statutory housing functions.

If a dwelling is only let for the purposes of a service occupancy, there is no reason why the occupier should have security of tenure, and a good reason why not. If his employment ceases, the local authority employer can then house his replacement there.




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