Mrs Helen Nicholas v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Pitchford,Lord Dyson MR |
| Judgment Date | 04 February 2015 |
| Neutral Citation | [2015] EWCA Civ 53 |
| Date | 04 February 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2013/2615/CHANF |
[2015] EWCA Civ 53
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
Mr Justice Burton
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Lord Justice Pitchford
and
Lord Justice Lewison
Case No: A3/2013/2615/CHANF
Stephen Knafler QC and Toby Vanhegan (instructed by Arkrights Solicitors) for the Appellant
Jonathan Davey (instructed by Treasury Solicitor) for the Respondent
Hearing date: 26 th January 2015
Introduction
Mrs Nicholas and her then husband Squadron Leader Nicholas moved into 4 Thorn Avenue, Bushey Heath in May 2005. They did so under the terms of a licence granted to Squadron Leader Nicholas by Defence Estates, acting on behalf of the Secretary of State for Defence. The licence ended with the following acknowledgement by Squadron Leader Nicholas:
"I have read and agree to the terms of this Licence. I understand that this Licence is to be granted because my occupation of the Property is required for the better performance of my service with the Crown and that this Licence is not a tenancy."
The licence was terminable by the licensor on 93 days' notice in certain events, including the vacation of the property by Squadron Leader Nicholas on marital breakdown. Unfortunately the marriage did break down and Squadron Leader Nicholas moved out some time before April 2008. On 22 May 2008 Defence Estates gave notice (the validity of which is disputed) requiring Mrs Nicholas to vacate the property by 24 August 2008. Over six years later, she is still there.
She argues that the fact that Crown licensees have no security of tenure amounts to unlawful discrimination as a result of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms taken in combination with Article 14; and that the MoD is acting unlawfully, and in breach of section 6 of the Human Rights Act 1998, in seeking possession. Additionally she argues that the notice which purported to terminate the licence was invalid. Burton J rejected her arguments on both points; and so would I.
The facts
The licence contained the following relevant provisions:
"1.1 In this Licence:
1.1.1 The Licensor is referred to as 'We'. The words 'Us', 'Our' and 'Ourselves' are also used in relation to the Licensor.
1.1.2 The Licensee is referred to as 'You'. The words 'Your' and 'Yourself' are also used in relation to the Licensee.
…
2. PERMISSION TO OCCUPY THE PROPERTY
2.1 The Licence gives You the right to occupy the Property for the duration of this Licence. Other persons, such as Your children and Your spouse, may only occupy the Property in accordance with MoD's current policy …
2.2 Permission to occupy the Property is personal to You only.
2.3 Your right to occupy the Property commences on the Start Date.
2.4 Your right to occupy the Property under this Licence will cease if the Licence is terminated, either in accordance with the relevant provisions of the Licence, or in any other way permitted by law.
3. PAYMENT OF THE FAMILY QUARTER CHARGE
3.1 You are responsible for and agree to the Family Quarter Charge … being deducted from Your pay.
…
5. HOW WE CAN END THIS LICENCE
5.1 We shall only end this Licence by providing You with written notice of termination. The period of notice of termination that We will give You will vary depending on the circumstances. These circumstances are set out in paragraphs 5.2 and 5.3 below. On or before expiry of the notice of termination, You must leave the Property and have complied with Your other obligations under this Licence.
5.2 We will give You 93 days' written notice of termination in the following cases:
5.2.1 Your marital status changes, resulting in loss of entitlement to Service Family Accommodation.
…
5.2.3 You vacate the Property on matrimonial breakdown. What constitutes marital breakdown for the purposes of this Licence is set out in JSP 464.
5.2.4 Your spouse vacates the Property on matrimonial breakdown and You are no longer entitled to occupation of Service Family Accommodation as set out in JSP 464.
…
10.1 We will serve any written notice on You at the Property.
…
10.4 Any notice (other than notices in legal proceedings) will be treated as having arrived 48 hours after posting."
It continued with the acknowledgement I have already quoted.
On 7 April 2008 Squadron Leader Nicholas wrote to Defence Estates saying that he had begun divorce proceedings against Mrs Nicholas and that he had moved out of the property "a while ago". He also told them that he had found accommodation at RAF Bentley Priory. On 22 May 2008 Defence Estates wrote a letter addressed to both Squadron Leader and Mrs Nicholas. One copy was sent to Mrs Nicholas at the property and another to Squadron Leader Nicholas at RAF Bentley Priory. The letter was headed "NOTICE TO VACATE SERVICE FAMILIES ACCOMMODATION" and began:
"We are sorry to learn of the breakdown of your marriage. Unfortunately this means that your entitlement to live in Service Families Accommodation has come to an end. The first step is a notice to vacate, which is issued to you and we enclose your notice with this letter."
The enclosed notice (also sent to both Squadron Leader and Mrs Nicholas) was addressed to Mrs Nicholas alone. That notice began:
"You are hereby required to vacate the Service Families Accommodation at 4 Thorn Avenue on or before 24 August 2008 due to your Marital Breakdown."
Mrs Nicholas did not vacate and in due course Defence Estates sent her a questionnaire about her personal circumstances in order to conduct what they described as a "Proportionality Exercise" which, they said, was required by the Human Rights Act 1998. It does not appear that Mrs Nicholas replied to that questionnaire, or indeed to a subsequent questionnaire that was sent to her. In due course the MoD began possession proceedings against her. Because she raised the question whether there was an incompatibility between primary legislation and a Convention right, the action (together with another similar action) was transferred to the High Court.
The legislative framework
(a) The Human Rights Act
Section 6(1) of the Human Rights Act 1998 provides:
"It is unlawful for a public authority to act in a way which is incompatible with a Convention right."
The Convention rights in issue in our case are those contained in Article 8, taken together with Article 14. Article 8 provides:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Article 14 provides:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
Section 4 of the Act provides:
"(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility."
(b) Security of tenure
The two principal systems of security of tenure in England and Wales for short term tenants are assured shorthold tenancies (in the private sector) and secure tenancies (in the public sector). Almost all private sector short term tenancies granted after February 1997 are assured shorthold tenancies rather than assured tenancies: Housing Act 1988 s. 19A. In order for there to be security of tenure as an assured shorthold tenancy there must, in the first instance, be a tenancy rather than a licence: Housing Act 1988 s. 1 (1). If a tenancy is an assured shorthold tenancy then after the first six months of the tenancy it may be terminated on two months' notice: Housing Act 1988 s. 21. Once the tenancy has been validly terminated the court must order possession. This necessarily abbreviated summary ignores changes made by the Localism Act 2011.
However, paragraph 11 of Schedule 1 to the Act provides that (except in the case of land under the management of the Crown Estate Commissioners) a tenancy cannot be an assured tenancy if the interest of the landlord belongs to Her Majesty in right of the Crown or to a government department. Thus even if the licence in our case had been a tenancy, it could not have created an assured shorthold tenancy.
In the case of the public sector the principal system of security of tenure is via a secure tenancy. This applies to a tenancy or a licence to occupy a dwelling-house: Housing Act 1985 s. 79. If a secure tenancy is granted, the court may only make an order for possession on one or more of the grounds specified in Schedule 2 to the Act. In some cases the landlord must also show that it is reasonable to make an order for possession. In other cases the landlord must show that suitable alternative accommodation is available for the tenant and in yet other cases the landlord must show both that it is reasonable to make...
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