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Occupiers of almshouses - Stewart v Watts [2016] EWCA Civ 1247

Can an almsperson claim security of tenure over their home?

In the UK there are 1,700 almshouses, housing some 35,000 residents. The question for the Court of Appeal in Stewart v Watts [2016] EWCA Civ 1247 was whether some or all of these residents occupy the almshouses as licensees, or instead as tenants with security of tenure. In holding that they are mere licensees, the Court of Appeal also gave useful guidance as to when sole occupation of land does not lead to the finding that there is, in fact, a tenancy.

 The facts

The particular facts of the case concerned Mrs Watts, a resident at an almshouse in Ashtead in Surrey owned by the Ashtead United Charity. She was served a notice to quit her occupation in 2014. At first instance it was held that, pursuant to Gray v Taylor [1989] 1 WLR 1093, she was a licensee; possession was therefore ordered.

 Is an almshouse resident a tenant or licence holder?

The Court of Appeal rejected the almsperson’s argument that exclusive possession necessarily means that an occupier is a tenant. At [31] it held that there is a distinction between legal exclusive possession or a legal right of exclusive possession (which entitles the occupier to exclude all others, including the legal owner), on the one hand, and a personal right of exclusive possession, on the other hand. Exclusive occupation may, or may not, amount to legal possession.  If it does, the occupier is a tenant.  If it does not, the occupier is not a tenant and occupies in some different capacity.

It was held that the occupier’s terms of occupation did not grant legal exclusive possession to Mrs Watts: for example, the charity could move her to another almshouse and visitors were not allowed to stay. There was no question of the Trustees trying artificially to colour the occupation agreement as a licence rather than a tenancy in order to disguise the true nature of the relationship.   Furthermore, the trustees could only properly discharge the trusts of the charity if a personal revocable licence was granted: for example, the licence could be revoked if the occupier became wealthy.

 Almshouse occupancy and the Charities Act 2011

The occupier also argued that the Judge had no jurisdiction to decide the claim because the proceedings were "charity proceedings" within section 115(8) of the Charities Act 2011 and no authorisation for them has been given by the Charity Commission or a Chancery High Court judge as required by section 115(2) and (5). This was rejected as ‘plainly wrong’. The proceedings were nothing to do with the internal administration of the charity, but were for possession of the property pursuant to the terms of a written contractual licence.

Do Article 8 / 14 rights apply to almshouse residents?

Finally, the Court of Appeal rejected the argument that the occupiers of almshouse accommodation are entitled to security of tenure by virtue of Article 14 of the European Convention on Human Rights (‘The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’) when read with Article 8 (‘Everyone has the right to respect for his private and family life, his home and his correspondence of the Convention’).

It was conceded that the charity was not a public authority. In McDonald v. McDonald [2016] UKSC 28; [2016] 3 WLR 45 the Supreme Court held that, while the jurisprudence of the Strasbourg court did provide some support for the notion that Article 8 was engaged when the court was asked to make an order for possession in favour of a private landlord, there was no support for the proposition that the judge could be required to consider the proportionality of the order which he would have made under the provisions of the applicable legislation.

Mrs Watts submitted that, when read with Article 8, Article 14 prohibits discrimination against her on the basis of her status as an almsperson and/or as the object of a charity. The Court of Appeal was inclined to the view that her status as an almsperson was not a qualifying characteristic for the purpose of Article 14, partly because her occupation was a matter of choice, but also because there was a danger of defining a qualifying personal characteristic by the very differential treatment of which Mrs Watts complained.

The Court of Appeal’s ruling

In the event, it was not necessary to decide this point, as the Court of Appeal held that there was objective justification in any case. In the context of almshouses the exclusion of security of tenure for almspersons has been in place for many years.  Parliament has not required the grant of assured shorthold tenancies to almspersons.  The denial of security of tenure to almspersons is clearly justifiable as a proportionate measure which secures a fair balance between the interests of charities and current and future almspersons.

Mrs Watts was therefore a licensee and not a tenant, and could not pray in aid the Human Rights Act 1998.

 

David Sawtell / 18th Jan 2017


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