Service occupancy: meaning of ‘for the better performance’ of duties
In Wragg v Surrey County Council ([2008] EWCA Civ. 19,
CA (Eng)) W was a countryside ranger employed by the Council to carry
out duties relating to the management and conservation of areas of
common land in Surrey. His employment contract required him to live in a
house provided by the council and declared that this was for the better
performance of his duties. W sought to exercise the right to buy under
the Housing Act 1985. Whether he could do so or not depended on whether
the arrangement fell within an exception that applied to tenancies where
the tenant’s contract of employment required him to occupy the
dwelling-house for the better performance of his duties.
On its face, the contract clearly did fall within the exception but the English Court of Appeal held that one had to look at the substance and not merely the terminology employed. Although the judgment arises in a particular statutory setting, it gives guidance on the meaning of ‘for the better performance of his duties’ that is rooted in more general authorities and helps to explain those authorities.
The phrase, ‘for the better performance of his duties’ invites a consideration of the parties’ intentions when including the express term in the contract. The intention is an objective intention: there is a need for a real, objective link between the requirement and the better performance of the duties ([40] per Richards L.J).
‘Better’ does not mean ‘efficient’. It is a true comparative. The question is whether the inclusion of the term rests on a reasonable judgment that performance of the duties would be materially assisted by the occupation (better with the occupation than without it) ([48] per Richards L.J.). Richards L.J. gives guidance on relevant considerations at [46]. The test is not necessity: the fact that the duties can still be performed without the occupation does not settle the matter.
The arrangement was for the better performance of the ranger’s duties and so fell within the exception ([55]).
On its face, the contract clearly did fall within the exception but the English Court of Appeal held that one had to look at the substance and not merely the terminology employed. Although the judgment arises in a particular statutory setting, it gives guidance on the meaning of ‘for the better performance of his duties’ that is rooted in more general authorities and helps to explain those authorities.
The phrase, ‘for the better performance of his duties’ invites a consideration of the parties’ intentions when including the express term in the contract. The intention is an objective intention: there is a need for a real, objective link between the requirement and the better performance of the duties ([40] per Richards L.J).
‘Better’ does not mean ‘efficient’. It is a true comparative. The question is whether the inclusion of the term rests on a reasonable judgment that performance of the duties would be materially assisted by the occupation (better with the occupation than without it) ([48] per Richards L.J.). Richards L.J. gives guidance on relevant considerations at [46]. The test is not necessity: the fact that the duties can still be performed without the occupation does not settle the matter.
The arrangement was for the better performance of the ranger’s duties and so fell within the exception ([55]).
March 27, 2013 at 10:24 am | Similar to the Court of Final Appeal decision yesterday – on the denial of Right of Abode to the domestic helpers. It’s all in the contract that their status of ‘residing in HK’ is restricted to ‘living with the employer while on the job’.
Good to see consistency here.
March 27, 2013 at 3:47 pm | From a land law perspective, anyway, domestic helpers are clearly licensees not tenants since there is a contractual requirement to live with the employer and this does materially assist the performance of their duties. I haven’t read the CFA judgment in the domestic helper case.
March 27, 2013 at 7:49 pm Land Law sounds interesting. I’ll take it as an elective subject next year.
As always, thanks for sharing and responding.
Here’s the Right of Abode judgment, FYI.
http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=86304&currpage=T