West London National Health Service Trust v Keith Douglas Palmer

For Article 14, an alleged “other status” must exist independently of the discrimination complained of. A tenant of a Crown or government landlord is not necessarily in an analogous position to a private tenant where the tenancy was granted through employment, on the employer’s site, for operational reasons and on advantageous terms. For policy choices about public housing, justification is assessed by asking whether the difference is manifestly without reasonable foundation; managing state assets and housing key workers can satisfy that test.

Where domestic law has ended occupation, Article 8 still requires proportionality, but an owner’s property and management rights create a strong starting point. The occupier must identify particular facts reaching a high threshold. A rent-review power may be delegated within a large organisation, and landlord-supplied utilities may fall within covenants to pay outgoings and heating and lighting costs.

The claimant NHS Trust sought possession of a hospital-estate house and payment of rent, mesne profits and utility charges from a retired nurse whose service tenancy had begun in 1988. The defendant argued that the tenancy had protection under the Rent Act 1977, relying on Articles 8 and 14 of the Convention and Article 1 of Protocol 1. He also challenged the validity of rent increases and claimed that utilities could be withheld pending septic-tank repairs.

The court had to determine whether the statutory Crown and NHS exemptions applied, whether possession would be disproportionate, whether the rent-review clause had been complied with, and whether the utility liabilities were enforceable.

1. Disposition. The tenancy was not a protected tenancy under the Rent Act 1977. It had been lawfully terminated, and the claimant was entitled to possession, rent arrears, mesne profits and utility charges arising within six years of the claim.
2. Article 14. Applying the four-question approach identified in Haringay LBC v Simawi [2019] EWCA Civ 1770, the court held that the defendant had not established a qualifying “other status”. Although the status of being a tenant of a Crown or government landlord existed independently of the statutory exemption, it was too remote from a relevant personal characteristic. The reasoning in Southward Housing Co-operative Ltd v Walker [2016] Ch 443, as apparently approved in Stewart and Ors v Watts [2018] Ch 423, supported that conclusion. Alternatively, the service tenancy was not analogous to a private tenancy, and the exemption was not manifestly without reasonable foundation. Its purposes included managing state assets, housing key workers and preserving flexibility when existing tenancies transferred to new NHS bodies. The issue whether possession would be reasonable under section 98 and Schedule 15 therefore did not arise.
3. Human Rights Act. Even if Article 14 had been breached, section 3 of the Human Rights Act 1998 could not be used to disapply clear statutory provisions or adopt a meaning inconsistent with a fundamental feature of the legislation. A declaration under section 4 would not affect the validity, continuing operation or enforcement of the legislation.
4. Article 8. Following Manchester City Council v Pinnock [2011] 2 AC 104, proportionality could be raised despite the domestic termination of the tenancy. However, the claimant’s ownership and hospital functions created a strong case for possession. The defendant had to plead and establish particular facts meeting the high threshold required by the authorities. The claimant’s evidence that its limited staff accommodation was fully occupied, with a waiting list, was sufficient. Long occupation, attachment to the home and personal circumstances did not make this an exceptional case warranting suspension or refusal of possession.
5. Financial claims. The rent-review clause permitted delegation within the claimant’s administration. The Estates and Facilities Department was responsible for managing the properties, and the 2021 increase to £950 per month complied with the clause. The covenants to pay outgoings and heating and lighting costs covered utilities supplied and invoiced by the landlord. An arrangement permitting withholding while repairs were outstanding provided no continuing basis for withholding after the tenancy ended and the repair obligation ceased.