High Court rejects Article 14 challenge regarding security of tenure for local authority employees occupying ‘tied accommodation’

01 Jan 2018


Paragraph 2 of Schedule 1 of the Housing Act 1985 provides that accommodation occupied by employees of local authority landlords, who occupy the property for the better performance of their duties, do not enjoy security of tenure.  In a judgment handed down today in Hertfordshire County Council v Davies [2017] EWHC 1488 (QB), the High Court has rejected a challenge seeking a declaration that this exemption was incompatible with Article 14 ECHR, together with a number of other defences based in public and private law.

Mr Davies was a school caretaker who was offered a resident position by Hertfordshire County Council in 2002. Together with his family he moved into a bungalow on the property of one of the Council’s schools, pursuant to an agreement which clearly stated that his right to occupy would terminate automatically on the end of his employment. In 2015 he was dismissed from his position.

The subsequent possession claim was transferred to the High Court as Mr Davies was seeking a declaration of incompatibility.  He raised in any event a plethora of purported defences to the claim, both with regard to the true status of his occupation in addition to public law and discrimination arguments.

These were all dismissed in today’s judgment by the Hon. Mrs Justice Elisabeth Laing.

She held that Mr Davies had occupied the premises throughout his employment under a service occupancy agreement which in line with the rule in Norris v Checksfield [1991] 1 WLR 1241 terminated automatically at the conclusion of the employment.

The indirect discrimination defence was rejected and focus was had in particular on the link between the private law rights of the Council in securing possession and the various public law defences raised. It was against that background that Mrs Justice Laing dismissed defences relying on proportionality under Art. 8 ECHR, failure to comply with the Public Sector Equality Duty under s. 149 of the 2010 Act, and failure to comply with s. 11 of the Children Act 2004.

As to the Article 14 challenge, the court concluded that service occupants did not enjoy ‘other status’ so that any differential treatment was not proscribed by the Convention. Further and in any event, there was also good justification for such treatment, given landlords’ needs to accommodate their employees’ replacements and local authorities’ wide margin of discretion in allocating public resources.

This case is but the latest in a series of claims which have unsuccessfully challenged the compatibility of various provisions of the Housing Acts with Article 14 ECHR, all of which have cast doubt on the question of status in particular. That includes the recent cases of Southward Housing Co-operative v Walker and others [2016] Ch.443 (tenants of fully mutual housing associations), Nicholas v Secretary of State for Defence [2015] 1 WLR 2116 (spouse of a former Crown licensee service occupant), and Watts v Stewart [2017] 2 WLR 1107 (occupants of almshouses), all of which are cited in the judgment, please click here to view the judgment.

More generally, this is the first decision by a senior court regarding public sector ‘tied accommodation’ for several years, and the Judge’s meticulous review of the status of service occupancies under both common law and the 1985 Act will provide assistance to any parties contemplating a similar claim.

Andrew Lane & Tara O’Leary acted for Hertfordshire County Council. Bisi Reid is the instructing solicitor for Hertfordshire County Council.