Tenancy and occupation through employment

Wragg & Ors v Surrey County Council [2008] EWCA Civ 19 is an appeal on the refusal of some Right to Buy applications, but the main issue is when a tenancy falls under Schedule 1, para 2(1) Housing Act 1985, which provides:

“… 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.”

Some notes:

An assertion in the contract of employment that the acommodation is provided for the better performance of the employee’s duties is not sufficient to satisfy this provision.

The proper approach is a two stage test. First – is occupation of the accommodation required by the contract of employment? Second- is this for the better performance of the duties?

‘Better performance of duties’ raises a question of fact, outside the terms of the contract.

Where it is clear that occupation is for the better performance of duties ‘it would be surprising if the omission of this express requirement from the contract meant that the statutory exception did not apply.

‘For the better performance’ is not a question of subjective intention of the parties.

“The statutory provision should be construed as including an objective test:  “for” is to be read as “to enable”, the essential question being whether the required occupation of the property is intended to promote, and is reasonably capable of promoting, the better performance of the employee’s duties. (para 44)”

Para 46 sets out what is to be considered in the objective test:

“the court will look at all the circumstances in deciding whether the required occupation is for the better performance of the employee’s duties.  Those circumstances will include the reasons given for the imposition of the requirement to occupy the property and the considerations taken into account in imposing that requirement, scrutiny of which is likely to be particularly important in determining whether occupation of the property was reasonably capable of leading to better performance of the employee’s duties.  It will also be relevant to consider the factual history in so far as it casts light on whether occupation of the property was or was not reasonably capable of leading to better performance of the employee’s duties.  But I would stress that the test is not whether, in the particular case, the requirement to occupy the property has in fact led to the better performance of the employee’s duties.   Thus, if occupation of the property was reasonably capable of leading to better performance, it is immaterial that the particular employee has not used the property in such a way as to produce that better performance in practice. “

The test is to be applied to the situation as at the date notice is given under the 1985 Act (or the relevant date in other proceedings)

“Better” is not a synonym for ‘efficent’ or ‘proper’ performance of duties. It is a comparator, the comparison being with the situation if there was not a requirement of residence in the property concerned. However, there is no requirement for the occupation to be necessary for the performance of duties, unless the residence condition is being implied into the contract.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, right-to-buy, secure-tenancy and tagged , , , .

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