England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COLCHESTER COUNTY COURT
(DISTRICT JUDGE BRANDT)

		Royal Courts of Justice Strand London WC2 Thursday, 24th May 2001

Thursday, 224th May 2001

1. LADY JUSTICE HALE: This is an application for permission to make a second appeal. This was a possession action brought by the claimant local authority with counterclaims by the applicant defendant. On 6th September 2000 District Judge Bazley White in Ipswich County Court gave judgment in favour of the local authority. On 29th November 2000 His Honour Judge Brandt in the Colchester County Court dismissed the defendant's appeal.
2. The issue is whether he is the secure tenant of the house he occupies, or whether his case is covered by the exception to security contained in paragraph 2(1) of schedule 1 to the Housing Act 1985. This reads in so far as is material to this case:

"A tenancy is not a secure tenancy if the tenant is an employee of the landlord or of -

a local authority...

and his contract of employment requires him to occupy the dwelling-house for the better performance of his duties."

3. The house in question is Alexandra Park Lodge, Grove Lane, Ipswich. As its name suggests it is a park lodge in a park owned by the local authority. It has, however, been occupied by varying levels of local authority employee over the years.
4. The applicant was first employed by the local authority as a young garden labourer in 1973. He progressed in 1976 to the rank of gardener. Some of his duties were at Alexandra Park. He applied to live in a different park house and did not succeed. In 1985, however, this one was due to become vacant and he was offered it. The local authority was well aware of the provisions first enacted in the Housing Act 1980. This, for the first time, gave security of tenure to tenants of public sector housing. The local authority recognised, therefore, that it would have to clarify the position of occupants of park lodges. This resulted in two steps.
5. The first was a form of agreement to occupy the premises. The applicant signed such an agreement in 1980. This provided in paragraph 2:

"It is essential for the Employee to occupy the Premises while employed by the Council for the proper performance of the Employee's duties, and the Employee agrees so to do on the terms and conditions set out in the Schedule."

6. The schedule contains a paragraph 5 which reads:

"The occupation of the Premises by the Employee is a condition of the Employee's employment with the Council and the right of the Employee to occupy the Premises shall cease upon the termination of the said employment or upon the employee being transferred to another employment of the Council or upon the expiry of eighteen months from the date hereof, whichever shall be the earliest."

7. The second step was that the contract of employment of such occupants was changed to reflect those requirements. The evidence of this in this case came from Mr Rodney Cook who was parks manager at the time. It is contained in paragraph 19 of his witness statement and refers firstly to a letter of his dated 23rd January 1985. This is the letter in which the applicant was offered the lodge in view of his working at Alexandra Park:

"... as it will assist in the performance of your duties and on the understanding that you will be married in the near future."

8. It contains the following passage:

"It will be necessary for you to produce your contract of employment document you received when you started work with the Parks Division in order that I can amend it, in order that it refers to your occupation of the lodge."

9. Mr Cook went on to explain that he had seen a file note in his handwriting which referred to the applicant, and said that the applicant could not find his original contract of employment and so a new "green contract" was given to him with the appropriate wording. By green contract he meant the statement of particulars of terms of employment for manual works which is usually printed on green paper. It was not at that time the council's practice to retain copies of the file. The district judge accepted Mr Cook's evidence and indeed it is not contested that the contract of employment was amended at the time so as to require him to live in the lodge.
10. It is also common ground that the applicant was required to undergo certain extra tasks in relation to the park as a consequence of living in the lodge. These were not written down at the time but were set out in a memorandum from the acting parks manager which, although undated, was some time in 1987. They include various security duties in relation to the park and clearly anticipate that the occupant of the lodge will be there able to assist in matters full time, up to 24 hours a day.
11. The argument put on behalf of the applicant is that this was not a job with a house attached, but a house with strings attached. The applicant was already employed as a gardener. He wanted a house; he was offered one; it came with additional duties, but the job was not such as to require him to live in this house. Put another way, the question was the genuineness of the requirement to occupy this house.
12. As to this argument the wording of paragraph 2(1) of schedule 1 to the 1985 Act is quite clear. There are two limbs. First, the occupant has to be required "by his contract of employment" to occupy the house. The facts found by the district judge were that the terms agreed in relation to occupation were incorporated in the contract of employment and that is not contested. So as a matter of straightforward application of the wording of the statute he was required by his contract of employment to occupy the house.
13. The second limb is that that requirement has to be "for the better performance of his duties". One notices straightaway that it does not say that it has to be essential for the performance of his duties, but simply that it has to be for the better performance of his duties. Once the judge has held that the contract of employment was altered to contain the requirement and that his duties were altered to include specific extra duties which were associated with security and other needs of the park, it is difficult indeed to escape the conclusion that the requirement to occupy was for the better performance of his duties. One only has to go down the list, as His Honour Judge Brandt did, to understand that those duties would be much better performed by someone living in the lodge than by anyone else. I repeat that the law does not say that the duties must require him to be there, simply that he must be required to be there for that better performance. Nor does it say that they have to be all his job, although in this case his work at Alexandra Park was a substantial proportion of his work according to the findings of the district judge.
14. Mr Lofthouse, who has been eloquent indeed on behalf of the applicant in this case, draws attention quite rightly to the distinction between paragraph 2(1) of Schedule 1 to the 1985 Act, and paragraph 5 of Schedule 5 to that Act. Schedule 5 defines those cases where secure tenants do not enjoy, in addition to their security, the right to buy. He points out that certain dwelling houses which are let to the tenants in consequence of the tenant or a predecessor being in the employment of the landlord are covered by that paragraph. He says that this was a case in which the house was let in consequence of the employment but not a case in which the employment contract required the tenant to occupy it. There is indeed such a distinction, but once it is clear that the contract of employment does require such occupation and it is for the better performance of certain duties that is sufficient for it to fall within paragraph 2(1) of schedule 1.
15. Accordingly, I agree with the view expressed by Mummery LJ in refusing permission to appeal on paper. His view was that:

"This is not a secure tenancy. His contract of employment required the applicant to occupy the property for the better performance of his duties".

16. Mummery LJ also pointed out that this was a second-tier appeal which did not raise an important point of principle or practice. There was no compelling reason for this court to hear it and indeed he went so far as to say that there was no reasonable prospect of success on the points in the skeleton argument. I agree with that assessment of this case and accordingly this application fails.
(Application refused; no order for costs)