Hertfordshire County Council v Davies

A dwelling occupied by an employee as a condition of employment may be a service occupancy rather than a tenancy, even where the written agreement grants exclusive possession and describes itself as a tenancy. The relevant question is whether occupation is required, or is reasonably capable of promoting the better performance of the employee’s duties.

Where employment ends automatically under the agreement, the Protection from Eviction Act 1977 does not require a notice to quit unless the notice is the mechanism determining a periodic licence. Public law duties may apply to a local authority’s decision to recover possession, but a breach supplies a defence only where it is linked to the private law right relied on. The statutory exclusion of service occupiers from secure-tenancy protection was compatible with articles 8 and 14.

The Council sought possession of a school bungalow occupied by the defendant, a former resident caretaker. His employment required him to occupy the bungalow for the better performance of his duties. A service-occupancy agreement had been signed, and the defendant was dismissed for gross misconduct in June 2015.

The defendant contended that he was a tenant, that the agreement was subject to statutory notice requirements, and that possession was resisted by public law, disability-discrimination and Convention-rights defences. The central issues were the legal nature of the occupation, the application of paragraph 2 of Schedule 1 to the Housing Act 1985, the effect of the Protection from Eviction Act 1977, and whether the statutory exclusion of service occupiers was unlawful.

1. Nature of occupation. The agreement created a service occupancy at its inception. The defendant was required to occupy the bungalow for the better performance of his duties, and that requirement was not capricious. The substance of the arrangement prevailed over its description as a tenancy. Alternatively, if it was a tenancy, it was not for an uncertain term because either party could terminate it on 28 days’ notice.
2. Continuing effect. The 2014 job description did not vary the employment contract or remove the requirement to reside on site. Residence remained intended to promote, and reasonably capable of promoting, better performance. The occupation did not become a new tenancy after dismissal.
3. Notice to quit. The agreement ended automatically when employment ended. Section 5(1A) of the Protection from Eviction Act 1977 applies where a notice determines a periodic licence. It did not apply because no notice was required to terminate this agreement in the events which occurred.
4. Secure-tenancy exception. Paragraph 2 of Schedule 1 to the Housing Act 1985 applied at inception and continued to apply. The defendant therefore did not have secure-tenancy protection.
5. Public law and discrimination. The Council’s decision to enforce the agreement was a public function to which sections 149 of the Equality Act 2010 and 11 of the Children Act 2004 could apply. Any breach did not provide a defence because neither duty conferred a private law right linked to the possession claim. The indirect-discrimination defence also failed: the relevant comparison was between disabled and non-disabled service occupiers facing eviction, and the policy was a proportionate means of recovering accommodation when employment ended.
6. Convention rights. Tied accommodation and ordinary local-authority housing were not analogous situations, and any difference in treatment was objectively justified. Section 3 of the Human Rights Act 1998 could not be used to delete the statutory exception, since that would amend rather than interpret the legislation.
7. Disposition. The defences failed. The Council was entitled to possession of the bungalow.

The defendant’s unfair-dismissal claim was held by the Employment Tribunal to be in time or within jurisdiction. The Employment Appeal Tribunal overturned that decision. Permission to appeal to the Court of Appeal was subsequently refused.

This possession claim was determined at first instance by the High Court.