Hertfordshire County Council v Bryn Colin Davies
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing DBE |
| Judgment Date | 21 June 2017 |
| Neutral Citation | [2017] EWHC 1488 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ16X01766 |
| Date | 21 June 2017 |
[2017] EWHC 1488 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Elisabeth Laing DBE
Case No: HQ16X01766
Andrew Lane and Tara O'Leary (instructed by Hertfordshire County Council Legal Services) for the Claimant
Toby Vanhegan and Riccardo Calzavara (instructed by Arkrights Solicitors) for the Defendant
Hearing dates: 16.05.2017 – 17.05.2017
Introduction
This is a claim by the Claimant, Hertfordshire County Council ('the Council') for possession of the School Bungalow, Cock Lane, Hoddesdon. Hertfordshire ('the Bungalow'). The Bungalow is owned by the Council. The Defendant moved into it with his family in about January 2003 when he became the caretaker at Sheredes School ('the School'). On 12 June 2015, after a disciplinary hearing, the Council dismissed the Defendant for gross misconduct. He appealed against the decision to dismiss him, unsuccessfully.
He brought proceedings in the Employment Tribunal ('ET') claiming compensation for unfair dismissal. He did not claim re-engagement or reinstatement. He did not claim that his dismissal was wrongful. He presented his claim outside the statutory time limit. The ET held it had jurisdiction to hear the claim. The Defendant appealed. The Employment Appeal Tribunal overturned the ET's decision. I was told at the hearing that the Defendant's paper application for permission to appeal to the Court of Appeal was pending in the Court of Appeal. I gather that it has since been refused.
In the meantime, as is accepted by the Council, on 16 June 2015, it served a notice to quit dated 12 June 2015 requiring the Defendant to give up possession on 10 July 2015. The Council issued proceedings for possession on 10 September 2015. The claim was in due course transferred to the High Court because one of the remedies sought by the Defendant in his counterclaim is a declaration that paragraph 2 of Schedule 1 to the Housing Act 1985 ('the 1985 Act') is incompatible with his rights conferred by the European Convention on Human Rights.
The Defendant is still living in the Bungalow with his wife and three children, who are between 8 and 18 years old.
When the Defendant started work, the School was managed by the Council in the discharge of its education functions. On 1 September 2016, the school became an academy, the Robert Barclay Academy. It is now owned and run by the Sir John Lawes Academy Trust ('AT'). The Council lets the school grounds to the AT. It has excepted the Bungalow from that lease and retained it.
The Defendant has raised various arguments concerning his tenure of the Bungalow to defend the possession proceedings. He has also pleaded that the service of the notice to quit was unlawful because it was a public law decision and the Council failed to have regard to various matters when deciding to serve the notice to quit.
As a matter of principle, the Defendant is entitled to raise public law challenges as a defence to that decision: see Wandsworth London Borough Council v Winder [1985] AC 461. In that case the council took possession proceedings relying on arrears of rent. The tenant argued that the decisions to increase those rents were ultra vires. The House of Lords decided that he could rely on those arguments as a defence to a private law claim. In the event, those defences did not succeed ( Wandsworth London Borough Council v Winder (No 2) (1988) 20 HLR 400). There must, however, be a link between the breach of public law which is asserted and a private law right: see Tower Hamlets LBC v Abdi (1992) 25 HLR 80, CA, at p 87, cited with approval by the Court of Appeal in London Borough of Hackney v Lambourne (1993) 25 HLR 172. I must decide what impact, if any, those defences may have on the Council's claim.
The Council was represented by Mr Lane and Ms O'Leary, and the Defendant by Mr Vanhegan and Mr Calzavara. I thank counsel for their helpful written and oral submissions. I heard evidence from Mr Oddy and Mr De La Croix for the Claimant and from the Defendant, his wife, Mrs Davies, their two daughters, Grace and Emily Davies and Mr Hemmings. This is my reserved judgment.
The facts
The Defendant started work for the Council in January 2003. He had been offered the job of 'Resident Caretaker' at the School, subject to various conditions, in a letter dated 2 December 2002, and permitted to enter the Bungalow in order to make it ready for his occupation. This letter said that the Defendant would receive a formal written contract in due course.
The job description dated November 2002 said, under heading 3, that attendance at evenings and weekends was essential and shared with the assistant caretaker. Under heading 4, the description stipulated that presence on site was essential for reasons of security: 'the post holder must be residential'. Other duties requiring presence on site were listed under that heading. The document made clear that it did not list all the possible duties, as these could change from time to time. The dwelling might not be available until 24 January 2003. Under the heading 'The School and the Accommodation' the description said 'The current rent is £75.05 per month, with [other matters] being paid by the tenant'.
The formal offer letter is dated 20 December 2002. The post is described as 'Caretaker'. The appointment was subject to the relevant collective agreement 'or as amended by the Governing Body'. Details of the disciplinary procedure were set out in the 'EPCON Booklet'. In bold type, at the foot of the first page, the letter said, 'As a condition of your employment you will be required for the better performance of your duties to occupy the accommodation provided at [the Bungalow]'. The 'current standard charge' for the accommodation was set out. That was to be deducted monthly from the Defendant's salary. The relevant paragraph then said, 'You will, in due course, be required to complete a formal agreement in respect of your occupation of the accommodation'. The letter said that the EPCON Booklet was enclosed with it. A letter dated 22 January 2003 and headed 'Accommodation Charges' notified the Defendant of 'an increase in rent to Residential Caretakers' employed in schools. The letter set out the new 'weekly rent charges'.
A document headed 'Service Occupancy – Tenancy Agreement' was signed by the Defendant and a representative of the Claimant on 2 July 2003. The 'Commencement Date of the Tenancy' was said to be 1 January 2003. The rent payable was £75.05 per month.
The agreement recited that the Defendant had been appointed to work at the school named in the Agreement, and that, 'as a condition of this employment you are required to live in the dwelling [ie the Bungalow] so that you can better perform your employment responsibilities[original emphasis]'. It continued, 'This document allows you to occupy the dwelling and sets out your rights and responsibilities as a tenant. It also sets out the rights and responsibilities of the Council as your landlord'. The next heading is 'Your rights whilst the tenancy continues'. The Agreement permitted the Defendant to use the Bungalow for his own private residential purposes. It said that he was entitled to live in it without interference from the Council, so long as he kept to the conditions of the Agreement. One of his responsibilities was 'to pay rent [w]hilst the tenancy continues'. The Council had rights of access to inspect the condition of the Bungalow and to work in the Bungalow to comply with the Councils' responsibilities under 'this Lease'.
It therefore appears that the agreement granted the Defendant exclusive possession of the Bungalow (cf Facchini v Bryson [1952] TLR 1386 at p 1388–9 per Somervell LJ).
Under the heading 'Termination of the Agreement' the agreement said, 'This Agreement can come to an end in the following circumstances'. At the first bullet point, it said 'Since your occupation of the dwelling is a condition of your employment with the Council, your right to live in the dwelling will end automatically when your employment with the Council ends, or …if your terms and conditions change so that you are no longer required to live in the dwelling to perform your employment responsibilities'. If the Defendant assigned, underlet or parted possession with the Bungalow, the Defendant would be entitled to end the Agreement. If either the Defendant or the Council wanted the Agreement to end, they could give at least 28 days' notice expiring on any weekday. Provision was made for the mechanics of giving notice. The Agreement also permitted the Council to bring 'the Tenancy' to an end if the Defendant was in breach of its terms. This section of the agreement then said, 'In practice the Council will usually be obliged to serve a notice to quit on you of at least 28 days' duration (this is not an obligation imposed on the Council by this Agreement but by the Protection from Eviction Act 1977)'.
A job description revised in January 2008 said (section 2) that 'This is a residential role with the post holder being required to live on site in school provided accommodation'. It referred to a standard working week of 37 hours, but said that the post holder would be required to provide an out-of-hours service which could entail early morning, evening and weekend work. Additional payments would be made for out-of-hours 'attendance of lettings and maintenance of the swimming pool'. Section 3 listed the main areas of responsibility, including various tasks which would be better performed if the defendant lived on, or very near, the school site.
The Defendant had surgery in June 2011 for slipped discs, and in May 2014 had an operation for a...
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