Public law defences to possession proceedings

Davies v Hertfordshire County Council [2018] EWCA Civ 379, 6 March 2018

The Claimant, Hertfordshire County Council, were the owners of a bungalow occupied by the Defendant, Mr Davies, and his family. The accommodation was tied to a local school, and Mr Davies had lived there since 2003 in his role as caretaker for the school.

Mr Davies had a number of physical health problems as a result of which various adaptations had been carried out to the bungalow over the years. Medical evidence suggested that, at the time of proceedings, he had a disability within the meaning of s6 Equality Act 2010.

In 2015, Mr Davies was dismissed from his job for gross misconduct and the council served a notice to quit, purporting to bring his right to occupy the bungalow to an end. The council then brought possession proceedings in the High Court. Mr Davies sought to defend the claim arguing that:

• the notice to quit was invalid as it did not meet the requirements of s5 Protection from Eviction Act 1977;
• the statutory scheme under the Housing Act 1985, which excludes service occupiers from security of tenure under that Act, resulted in unlawful discrimination contrary to Articles 8 and 14 ECHR;
• the council had made errors of public law in bringing the possession claim, having failed to have due regard to his disability and to the welfare of his children, contrary to s149 Equality Act 2010 and s11 Children Act 2004;
• his eviction would result in indirect discrimination contrary to ss19 and 35 Equality Act 2010, as the loss of the adapted accommodation would place him at a particular disadvantage when compared with people who are not disabled.

Mrs Justice Laing allowed the possession claim finding that:

• Mr Davies occupied the bungalow as a service occupier under a licence not a tenancy since his occupation was for the better performance of his duties;
• s5 Protection for Eviction Act 1977 did not apply since Mr Davies’ right to occupy the property was terminable (and had been terminated) by the termination of his employment, rather than the notice to quit;
• Mr Davies’ licence was excluded from the security of tenure regime by virtue of paragraph 2, Schedule 1 Housing Act 1985;
• this was not incompatible with Article 8 and 14 ECHR, since there were objective justifications for treating service occupiers differently to other classes of occupier;
• s149 Equality Act 2010 and s11 Children Act 2004 could apply in theory to the performance of the council’s functions in this case, but could not provide a defence to the possession claim as they did not confer any private law right on Mr Davies;
• though if that was not correct, the council had failed to discharge the s11 Children Act 2004 duty as it had given no thought at all to the presence of Mr Davies’ children;
• but there had been no breach of s149 Equality Act 2010, since the evidence did not establish that Mr Davies was under a disability at the time the notice to quit was served;
• for that same reason, the indirect discrimination challenge could not succeed.

Mr Davies appealed. The single issue for the Court of Appeal’s consideration was whether the judge had erred in concluding that s11 Children Act 2004 could not provide a defence to the claim for possession.

The court held that the discretionary decision to serve the notice to quit was an exercise of a function which left room for a consideration of the children's welfare pursuant to s11 Children Act 2004 and, following the same approach consistently taken by the courts in respect of Article 8 ECHR, it was open to a defendant to raise a s11 defence to possession proceedings in the county court ‘notwithstanding the lack of a private law right to remain in possession’. To the extent the judge had decided otherwise she was wrong. In the words of Sharp LJ at [28]:

‘…it makes perfect sense for issues about the wellbeing of children caught up in possession proceedings to be dealt with at the same time and before the same tribunal whether they are raised by reference to article 8 or section 11.’

However, it was not appropriate to set the possession order aside. The breach of s11 which the judge had found, on the particular facts of the case, had no relevance to the decision to whether or not a possession order should be granted. There was little mention of the position of Mr Davies’ children in his pleaded case or written arguments and no explanation had been put forward on his behalf as to how consideration of the children's welfare would have made any difference to the outcome of the claim. The judge had made no finding that there were any ‘unusual or compelling circumstances’ relating to the children ‘beyond the normal and understandable difficulties arising from the uncertainty over the future of their home’. Such difficulties were unfortunate but could not provide a justification for allowing the family to remain in their home, even on a temporary basis, after their right to occupy had been terminated.

The judgment is available here: Davies v Hertfordshire County Council [2018] EWCA Civ 379