Coleman v Ipswich Borough Council

A tenancy is excluded from security under paragraph 2(1) of Schedule 1 to the Housing Act 1985 where the employee’s contract requires occupation of the dwelling-house and that requirement is for the better performance of the employee’s duties. “Better” does not mean essential. The duties need not require residence, nor constitute the whole of the employee’s work. This statutory exception is distinct from the separate provision concerning employment-related lettings and the right to buy. Permission for a second appeal requires an important point of principle or practice, or another compelling reason, and a reasonable prospect of success.

A local authority brought possession proceedings against an employee occupying Alexandra Park Lodge, with counterclaims by the employee. The employee argued that the arrangement was a house with employment strings attached, rather than employment requiring occupation of the house, and that he therefore held a secure tenancy.

District Judge Bazley White gave judgment for the local authority on 6 September 2000. His Honour Judge Brandt dismissed the employee’s appeal on 29 November 2000. The employee applied to the Court of Appeal for permission to make a second appeal. The central issue was whether the tenancy fell within paragraph 2(1) of Schedule 1 to the Housing Act 1985.

Application refused. The Court of Appeal, per Lady Justice Hale, held that paragraph 2(1) of Schedule 1 to the Housing Act 1985 contains two conditions:

1. The employee must be required by the contract of employment to occupy the dwelling-house.
2. The requirement must be for the better performance of the employee’s duties.

The first condition was satisfied because the terms governing occupation had been incorporated into the contract of employment. The district judge’s finding on that issue was not challenged.

The second condition does not require occupation to be essential to the performance of the duties. It is sufficient that the duties are better performed by an employee living in the dwelling-house. The duties need not require the employee to be present there, and they need not comprise the whole of the employee’s work. The additional security and park-related duties associated with the lodge supported the conclusion that the statutory requirement was met.

The court accepted that paragraph 2(1) of Schedule 1 is distinct from paragraph 5 of Schedule 5, which concerns cases where a secure tenant’s right to buy is restricted because the dwelling-house was let in consequence of employment. That distinction did not assist the applicant because the contractual requirement and the better-performance condition were both satisfied.

The court agreed with the earlier paper refusal of permission. This was a second-tier appeal raising no important point of principle or practice, with no compelling reason for a further appeal and no reasonable prospect of success. There was no order for costs.

1. Court of Appeal (Civil Division): On 24 May 2001, permission to make a second appeal was refused: [2001] EWCA Civ 852.
2. Colchester County Court: His Honour Judge Brandt dismissed the employee’s appeal on 29 November 2000.
3. Ipswich County Court: District Judge Bazley White gave judgment for the local authority on 6 September 2000.