Stewart and Others v Watts

JurisdictionEngland & Wales
JudgeSir Terence Etherton, Mr
Judgment Date08 December 2016
Neutral Citation[2016] EWCA Civ 1247
Docket NumberCase No: B5/2016/2363 & B5/2016/2364
CourtCourt of Appeal (Civil Division)
Date08 December 2016

[2016] EWCA Civ 1247

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE GUILDFORD COUNTY COURT

HER HONOUR JUDGE RAESIDE

B00GU210 & B00GU2103

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Sir Terence Etherton, Mr

Lady Justice Arden DBE

and

Lord Justice Lloyd Jones

Case No: B5/2016/2363 & B5/2016/2364

Between:
Mrs Janet Watts
Appellant
and
(1) Mrs Ann Stewart
(2) Mrs Sheila Harris
(3) Mrs Ruth Price
(4) Mrs Elizabeth Wolsey as Trustees of the Ashtead United Charity (A Registered Charity)
Respondents

and

The Secretary of State for Communities and Local Government
First Interested Party
The Charity Commission for England & Wales
Second Interested Party
National Association of Almshouses
Third Interested Party

Mark Wonnacott QC, Toby VanheganandRiccardo Calzavara (instructed by Arkrights Solicitors) for the Appellant

Stephen Hockman QC and Nicholas Ostrowski (instructed by Gullands Solicitors) for the Respondents

Oliver Jones (instructed by the Government Legal Department) for the First Interested Party (intervening by written submissions only)

Chris Willis Pickup (Head of Litigation, Charity Commission) for the Second Interested Party (intervening by written submissions only)

Alex de Jongh ( solicitor, Bates Wells Braithwaite) for the Third Interested Party (intervening by written submissions only)

Hearing date: 15 November 2016

Approved Judgment

Sir Terence Etherton, Mr
1

This is the judgment of the court, to which all the members have contributed.

2

This appeal arises in proceedings by the respondents, the trustees ("the Trustees") of the Ashtead United Charity ("the Charity") against the appellant, Mrs Janet Watts, for possession of an almshouse occupied by her at 34, The Haven, Ottways Lane, Ashtead, Surrey ("the Property").

3

It raises issues relevant to the status of some 35,000 almshouse residents of some 1,700 almshouses, and, in particular, whether all or some of them occupy the almshouses as licensees or as tenants with security of tenure.

4

The appeal is against two orders of Her Honour Judge Raeside in the County Court at Guildford. The first is dated 20 January 2016 ("the January order") and gave effect to her decision on preliminary issues that, among other matters, Mrs Watts did not occupy the Property as a tenant, and she did not have a defence based on discrimination compared with other occupiers of public sector and social housing accommodation in breach of Article 14 of the European Convention on Human Rights ("the Convention") when read with Article 8 of the Convention.

5

The second order of the Judge is dated 11 May 2016 ("the May order"), by which she ordered Mrs Watts to give up possession of the Property by 9 June 2016 and to pay damages in respect of her occupation until possession was delivered up. It followed a trial in which the Judge found that (1) Mrs Watts was acting in breach of the terms of her appointment; (2) the Charity, acting through its Trustees, did not owe a fiduciary duty to people who are, or could be, objects of the Charity, including Mrs Watts; (3) there had been no breach of any fiduciary duty in choosing to terminate Mrs Watts' occupation of the property; and (4) the proceedings were not "charity proceedings" under section 115 of the Charities Act 2011.

The Charity

6

The principal object of the Charity is the provision of almshouse accommodation in three properties comprising a total of 14 residential flats.

7

The Charity's governing instrument is a Scheme of Arrangement registered with the Charity Commission for England and Wales ("the Charity Commission") in April 1996 ("the Scheme"). The following are relevant sections of the Scheme in the part of the scheme headed "Relief In Need":

"27 Relief in need (1) The Trustees shall apply the income of the Charity applicable for relief in need in relieving either generally or individually persons qualified as aforesaid who are in conditions of need, hardship or distress by making grants of money or providing or paying for items, services or facilities calculated to reduce the need, hardship or distress of such persons."

"29 Almshouses. The almshouses belonging to the Charity and the property occupied therewith shall be appropriated and used for the accommodation of residents in conformity with the provisions of this Scheme."

"31 Qualification of residents. … (2)(a) The residents of the almshouses … shall be poor single women of not less than 50 years of age who are inhabitants of the area of the ancient parish of Ashtead with a preference for such women who have been employed in domestic service."

"32 Contributions. The Trustees may make it a condition of appointing or permitting someone to reside … that they shall … contribute a weekly sum towards the cost of maintaining the almshouses… but the amount of the weekly sum shall not be such as to cause hardship."

"38 Absence from Almshouses. The Trustees shall require that any resident who desires to be absent from the almshouses for more than 28 days in any one year shall obtain the prior consent of the Trustees or of some other officer of the Charity to be nominated by them."

"39 Rooms not to be let. No resident shall be permitted to let or part with the possession of the room or rooms allotted to him or her or except with the special permission of the Trustees to allow any person to share the occupation of the same or any part thereof."

"41 Setting aside appointments (1) The Trustees may set aside the appointment of any resident who in their opinion—

(a) persistently or without reasonable excuse either disregards the regulations for the residents or disturbs the quiet occupation of the almshouses or otherwise behaves vexatiously or offensively; or

(b) no longer has the required qualifications;

(c) has been appointed without having the required qualifications;

(d) is suffering from mental or other disease or infirmity rendering him or her unsuited to remain a resident.

(2) Upon setting aside the appointment of a resident the Trustees shall require and take possession of the room or rooms occupied by him or her."

"42 Regulations The Trustees may prescribe from time to time such reasonable regulations as they consider expedient for the management of the almshouses and the welfare of the residents but so that the same shall not be at variance or inconsistent with any of the provisions of this Scheme."

Mrs Watts' occupation of the Property

8

Mrs Watts was allocated the Property pursuant to a letter of appointment dated 29 September 2004 ("the Appointment Letter"). The terms of the Appointment Letter were as follows so far as relevant:

"ASHTEAD UNITED CHARITY

LETTER OF APPOINTMENT

Dear Mrs. Watts,

I am pleased to advise you that the trustees of Ashtead United Charity have considered your application for accommodation and have decided to appoint you as a beneficiary of the Charity, with effect from 18 th October 2004.

You have been allocated accommodation in The Haven, 34 Ottways Lane, Ashtead, Surrey KT21 1PA.

A Weekly Maintenance Contribution of £33–42 is payable in advance each Monday towards the upkeep of the dwelling, and this figure may be increased annually upon one month's notice. Each resident is responsible for paying Council Tax and may wish to claim Housing Benefit to help with housing costs. (preferably £144–82 per calendar month).

The apportioned rent for the period 18–31 October 2004 is £65–40 and should be paid before the starting date of the 18 th October. Thereafter the monthly rent of £144–82 should be paid on the first of every month.

The following regulations for the residents are to ensure the smooth running of the almshouses:-

7. The residents must permit reasonable access for inspection of the almshouse and for repairs and redecoration to be carried out.

9. The residents should not vacate their dwellings for more than a total of twenty eight days in any one year without the prior consent of the trustees and should inform the trustees/warden if they will be away for more than a week at a time. The warden should be advised if you are away overnight

….

11. At the end of a tenancy four weeks' notice, in writing to the secretary, is required.

13. Neither the resident(s) nor any relation of his/hers/theirs will be a tenant of the charity or have any legal interest in his/hers/their almshouse.

14. The trustees may take such steps as they think proper in the administration of the trust and for the residents' welfare, and any alteration to the rules will be notified in writing to each resident.

15. Residents may expect to continue in occupation for as long as they need the accommodation and can look after themselves. If health deteriorates they must be willing to accept advice and guidance from time to time, either from their own doctor or a medical consultant appointed by the trustees. The trustees will also consult with the next of kin, Social Services etc to make arrangements as necessary.

16. Pets must not be kept without the written consent of the trustees.

17. Visitors are not permitted to stay in an almshouse, except with the consent of the trustees.

18. The trustees reserve the right to require a resident or resident to vacate their dwelling and move, either temporarily or permanently, to another almshouse belonging to the same charity.

19. All complaints or queries by the residents should be addressed to the designated trustee in the first instance. The resident's attention is drawn to the availability of the Housing Association Tenants Ombudsman Service. This service is available, through the secretary, to resolve disputes and complaints, which cannot be settled by the charity.

20. The trustees...

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