HOUSING — Secure tenancy — Right to buy — Local authority granting tenancies of dwelling houses to employees — Contract requiring employees to occupy dwelling houses — Whether requirement imposed for better performance of their duties — Whether employees having statutory right to buy — Housing Act 1985, Sch 1, para 2(1)

Wragg and others v Surrey County Council [2008] EWCA Civ 19; [2008] WLR (D) 29

CA: Pill, Moore-Bick and Richards LJJ: 1 February 2008

Whether an employee occupied a dwelling-house provided by the employer “for the better performance of his duties” within the meaning of para 2(1) of Sch 1 to the Housing Act 1985, so as not to be entitled to purchase the freehold of the house, was to established by applying an objective test.

The Court of Appeal, in a reserved judgment, so held in allowing an appeal by Surrey County Council against an order of Judge Reid QC in Guildford Couty Court granting declarations that the claimants, Andrew Wragg, Suzanne Hill, Robert Crompton and Stephen Fry, were entitled to buy homes occupied by them under their contracts of employment.

RICHARDS LJ said that the first condition of para 2(1) was that the employee’s “contract of employment requires him to occupy the dwelling-house”. That looked only to the terms of the contract: the question was simply whether the contract contained such a requirement or not. The second requirement was “for the better performance of his duties”. That raised an issue of fact outside the contract: the question was not whether the contract stated that the requirement was for the better performance of his duties but whether the requirement was in fact for the better performance of his duties. The essential question was whether the required occupation of the property was intended to promote, and was reasonably capable of promoting, the better performance of the employee’s duties. On the facts, the occupation of the houses fell squarely within the terms of para 2(1) of Sch 1.

MOORE-BICK and PILL LJJ agreed.

Appearances: Claire Andrews (Head of Legal and Insurance Services, Surrey County Council, Kingston upon Thames) for the council; Jerome Wilcox (Campbell Courtney & Cooney Solicitors, Camberley) for the claimants.

Reported by: BO Agyeman, barrister