Service occupiers: exclusion from security of tenure regime compatible with ECHR

Hertfordshire County Council v Davies [2017] EWHC 1488 (QB), 21 June 2017

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 Lang 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.

Comment:

An interesting case raising a varied range of legal issues and providing a helpful overview of the law relating to service occupiers, among other things. However, the judge’s finding that s149 Equality Act 2010 and s11 Children Act 2004 were not capable of providing a defence to possession proceedings, is difficult to reconcile with the case law on public law defences post Kay v Lambeth London Borough Council [2006] UKHL 10 and may prove to be controversial.

The full judgment is available: Hertfordshire County Council v Davies [2017] EWHC 1488 (QB), 21 June 2017