Davies v Hertfordshire County Council, Court of Appeal - Civil Division, March 06, 2018, [2018] EWCA Civ 379,[2018] WLR(D) 141

Resolution Date:March 06, 2018
Issuing Organization:Civil Division
Actores:Davies v Hertfordshire County Council

Case No: A2/2017/1897

Neutral Citation Number: [2018] EWCA Civ 379



Mrs Justice Elisabeth Laing


Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 06/03/2018

Before :





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Between :

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Toby Vanhegan and Riccardo Calzavara (instructed by Arkrights Solicitors) for the Appellant

Andrew Lane and Tara O'Leary (instructed by Hertfordshire County Council Legal Services) for the Respondent

Hearing date : 29 November 2017

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Lady Justice Sharp:


1. This appeal is brought against an order for possession dated 22 June 2017, made by Elisabeth Laing J. Permission to appeal was granted on 16 August 2017 by Thirlwall LJ on a single ground. This was whether the judge erred in law in determining as a matter of principle that the respondent's failure to comply with its statutory duties under section 11 of the Children Act 2004 (section 11 of the 2004 Act) and section 149 of the Equality Act 2010 (section 149 of the 2010 Act) could not provide a defence to its claim for possession.

2. Notwithstanding the terms in which permission was given, the issue of principle raised in relation to section 149 of the 2010 Act is a theoretical one: this is because the appellant was not given permission to challenge the judge's conclusion that section 149 had no application on the facts, nor was he given permission to challenge the judge's reasons for reaching that view. Having heard brief argument about this at the outset of the hearing, we decided in the circumstances that no useful purpose would be served by the expression of (obiter) views on a point that could have no effect on the outcome of the appeal, and that the appeal and submissions should be confined to the issue raised in relation to section 11 of the 2004 Act.


3. The facts can be briefly summarised. The appellant became the resident school caretaker at a school (Sheredes in Hertfordshire: `the school') in January 2003. He and his family moved into a bungalow (called the School Bungalow) on the school site when he took up his employment. The respondent is not a local housing authority. It owns the bungalow. When the appellant started work, the school was managed by the respondent in the discharge of its education functions. On 1 September 2016, the school became an academy; and it is now owned and run by an Academy Trust. The respondent leases the school grounds to the Academy Trust. The bungalow is excepted from the lease, because the appellant is still there.

4. The appellant, as the judge found, occupied the bungalow pursuant to a service occupancy. His licence to occupy ended on 12 June 2015 when he was dismissed for gross misconduct (the appellant's subsequent application to the Employment Tribunal claiming compensation for unfair dismissal, but not re-engagement or re-instatement, was unsuccessful). Thereafter, the appellant and his family, that is his wife and four children now aged 19, 17, 15 and 11, have had no private law right to remain in the bungalow, but have continued to live there as trespassers.

5. The respondent served the appellant with a document with the title ``Notice to Quit'' dated 12 June 2015, on the 16 June 2015. The notice to quit required the appellant to give up possession of the bungalow on 10 July 2015. The appellant failed to give up possession. Possession proceedings were commenced in the County Court at Hertford on 10 September 2015. One of the defences raised by the appellant to the claim was that the service of the notice to quit was unlawful ``in a public law sense.''

6. The relevant part of the pleadings said as follows:

``15. The service of the notice to quit was also unlawful in a public law sense because the claimant did not have regard to

(a) the rights of the defendant and his family under article 8 of the Convention;

(b) the defendant's disability and the claimant's duties under the Equality Act 2010,

(c) the best interests of the children and the need to safeguard and promote their welfare in accordance with section 33 of the Children Act 2004.

16. The defendant is disabled within the meaning of section 6 and Schedule 1 of the Equality Act 2010.

17. The claimant is in breach of sections 15, 19, 35 and 149 of the Equality Act 2010...

19. It is denied that the claimant is entitled to the relief claimed in paragraph 10, or any relief. The making of a possession order would be disproportionate and unreasonable, in breach of the Equality Act 2010, section 11 of the Children Act 2004, a breach of article 8 of the Convention, and give rise to a breach of article 14 when read with article 8. These breaches have been particularised above, but the following should also be taken into account.


(a) The property has been the family home since 1 January 2003 which is over 12 years.

(b) The family have no other accommodation.

(c) If evicted, the family risk street homelessness which would have an enormously detrimental impact on the physical and mental health of all the family members.

(d) The defendant has been a good tenant.

(e)The children are all in full time education.

(f) The defendant's sons were born and brought up at the property. It is the only home that they know.

(g) The defendant's wife is the sole carer of her father who lives in the next road.

(h) The property has been specially adapted for the defendant's needs.

(i) In June 2011 the defendant underwent surgery for two slipped discs. In April 2014 he had a double hernia operation. The defendant is a blue badge holder. In April 2015 he had a level access shower installed, which the parties paid for.

(j) The defendant is suicidal and is under the care of the Crisis Assessment and Treatment Team of the Hertfordshire University NHS Foundation Trust who are seeing him on a daily basis pending a psychiatric assessment. He is also suffering from depression and panic attacks for which he is taking mediation. He took an overdose. He is extremely vulnerable at the present time.''

7. The only reference to the section 11 duty and to the position of the appellant's children is to be found in the parts of the defence set out above.

8. The claim was transferred to the High Court on the appellant's application and it was tried by Elisabeth Laing J on 16 and 17 May 2017. She heard oral evidence from the appellant, his wife and two daughters amongst others. The appellant's freestanding defence that the service of the notice to quit was unlawful because no regard was had to his article 8 rights and those of his family, was not pursued on his behalf at trial. As I understand it, the defence raised by reference to section 11, though mentioned in the skeleton arguments, did not feature during the course of the trial either.

9. Judgment was handed down on 21 June 2017: see [2017] EWHC 1488 (QB). In the course of a long judgment, the judge dealt meticulously with the many issues raised on behalf of the appellant. Most of her conclusions are not challenged in this appeal. It is sufficient therefore to summarise her findings.

10. The judge held that the appellant was a service occupier of the bungalow at the inception of his employment agreement: see para 98. A change in his job description did not result in him ceasing to be a service occupier...

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