A Flawed Judgement

The judgement in question being that of Gray v Taylor. Mr Watkinson, who appeared for [the appellant], relied upon a well known passage in the speech of Lord Templeman in Street v Mountford [1985] 1 AC 809 at p.817, where he said:

“In the case of residential accommodation there is no difficulty in deciding whether the grant confers exclusive possession. An occupier of residential accommodation at a rent for a term is either a lodger or a tenant. The occupier is a lodger if the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises. A lodger is entitled to live in the premises but cannot call the place his own.”

The advocate’s inference being that because almshouse residents have exclusive possession they have a tenancy protected by law. But his argument was countered by the appeal judges’ adducing of the fuller utterance of Lord Templeman who’d gone on to say:

  “….There can be no tenancy unless the occupier enjoys exclusive possession; but an occupier who enjoys exclusive possession is not necessarily a tenant. He may be owner in fee simple, a trespasser, a mortgagee in possession, an object of charity or a service occupier.” 

The operative words being ‘an object of charity’.

Leaving aside the fact that the legal fiction of a peppercorn rent is sufficient to establish a defensible tenancy:

We maintain that an almshouse resident is an object of charity only to the extent that the rent (howsoever a landlord chooses to call it) he/she is paying falls short of the equivalent market rent for the standard of the property he/she is inhabiting in the locality within which that property is located. In other words, the charitable status of an almshouse resident is a variable. To continue:

One of the appeal judges, Lord Justice Mummery, in the course of argument, put forward an engaging flight of fancy to demonstrate the principal sticking point of this case, which is that the granting of secure tenancies would frustrate the aims of an almshouse charity. He postulated that all the residents might join together to buy a lottery ticket; and if the ticket came up and transformed their fortunes they might decide to stay where they were, amongst familiar surroundings and with familiar neighbours. This would transform the almshouses into a rich persons’ club (thus shutting out deserving applicants on the waiting list). He then said:

 “It cannot be seriously suggested that the change from being a poor to being a rich person would be a ground falling within Part I of Schedule 2 of the Housing Act 1985 on which the court could make an order for possession.”

We can’t find a ground in the cited section that would fit the bill; but Ground 11 of Part II of Schedule 2 of the same Act (or mutatis mutandis the Housing Act 1988 apropos private landlords) provides that a court may order possession provided suitable alternative accommodation is available ‘if the landlord is a charity and the tenant’s continued occupation of the dwelling-house would conflict with the objects of the charity.’

Furthermore, the ‘mischief’ contemplated and supposedly averted by the Gray v Taylor judgement stands to be invalidated by inter alia Ground 17 of section 8 of the Housing Act 1988 on the ground that (we quote): The tenant… has given false information to the landlord which resulted in the landlord granting the tenant the tenancy.

In the postulated scenario the statutory proviso about alternative accommodation would be eminently satisfied (the hypothetical tenants now being filthy rich!); and parliament’s intention duly implemented. Consequently we contend that Lord Mummery’s peroration adverse to almshouse residents is a non sequitur. Failing which, the judgement gifts trustees the unique malevolence of being able to render their elderly, vulnerable charges homeless with impunity.

And if we may deconstruct another peroration, this time by Sir John Vinelott:-

“… An example may make this clear. Suppose that trustees hold a fund on trust to pay the income to A, but with power to apply the fund in the purchase of a residence for him or her. A asks the trustees to buy a flat at a price which would absorb the whole of the fund.”

So, if we’re reading this right, trustees buy a flat for the beneficiary with the beneficiary’s own money. Where then, pray, is any charitable element? He/she can hardly be an ‘almsperson’.

“The trustees agree to do so, but on terms that A pays them a quarterly sum sufficient to discharge the ground rent and any service charge.”

Surely, in this supposed example, an erstwhile beneficiary will have become a tenant of a leasehold and the erstwhile trustees of a bare trust will simply have morphed into an estate agent remitting ground rent and service charges to third parties. The trust itself will have run its course and is thus extinguished.

“These sums are not rent and the agreement to pay them does not convert A’s occupation of the flat from occupation as a beneficiary to occupation as a tenant.”

Yes they are and yes it does. Ground rent is rent. In logic and in law it can be no other way.

These obiter dicta were both redundant and irrelevant in presuming to address a problem already solved by statute. To continue:-

Some 36,000 sitting almshouse residents were ambushed by this judgement. At a stroke they were relegated to ‘licensees’ – nothing more than lodgers. Unique among British subjects they can now be rendered homeless on a landlord’s whim without recourse to the protection of a court. We repeat – no trustee of integrity would feel the need for such a sanction.

We have examined the judgement in Gray v Taylor in some detail and it appears to be flawed on a number of points, viz.:

1        It is founded upon an incestuously iniquitous paradox, in that the allegedly violated ‘quiet enjoyment’ (the precipitating issue was never determined in either court) is a common law right which the affected parties (the appellant and her almshouse neighbours) became divested of by the very import of the judgement.

2        The charity in question did have a power to make and break secure tenancies, thus invalidating the paramount presumption in the judgement. There is that statutory power (Housing Act 1985, Schedule 2 Part II Ground 11 – or mutatis mutandis the Housing Act 1988) accruing to housing charities whereby a secure tenant who has become disqualified as a beneficiary can be disensconced. Furthermore, the ‘mischief’ contemplated and supposedly averted by the Gray v Taylor judgement stands to be invalidated by Ground 17 of section 8 of the Housing Act 1988 on the ground that (we quote): The tenant…  has given false information to the landlord which resulted in the landlord granting the tenant the tenancy.

3        It runs counter to the House of Lords’ ruling in Bruton v London and Quadrant Housing Trust (2000) which determined that the performance of socially valuable functions does not amount to circumstances capable of negating the general rule in favour of a tenancy

4        It further runs counter to Bruton in that the fact that a party has no estate out of which it can grant a tenancy is immaterial when all other conditions of tenancy are satisfied.

5        Under Section 205 (General Definitions) of the Law of Property Act 1925 any periodical payment in money or money’s worth qualifies as rent (whatever a landlord may choose to call it), thus belying the crown court judge’s assertion that it was “wholly immaterial” whether beneficiaries paid a weekly contribution or not.

6        In accordance with Section 149(6) of the Law of Property Act 1925 and Section 36(9) of the Charities Act 1993 the judge could just as well have found that, on the facts, the plaintiff/appellant had acquired by default a 90-year non-repairing equitable lease determinable on death.

7         If the housing benefit rules are to be the criterion (as per Sir John Vinelott’s rationale – see below), by reason that many residents are not eligible for the benefit and thereby suffer a net loss, the ‘service charge’ they are paying amounts to nothing other than rent and the resulting nexuses can be nothing other than tenancies.

8         Prior to Gray v Taylor there existed a clear – and just – parliamentary presumption that almhouses were tenanted. The wording of Ground 11 of Part II of Schedule 2 of the Housing Act 1985 allows that possession orders for almshouses may be enforced… provided suitable alternative accommodation is available. This safety net for the aged and vulnerable was effectively removed by the Gray v Taylor judgement and trustees became empowered to put almshouse residents out onto the street. Thus did a lower court presume to interdict the will of parliament and a prescriptive human right to a home. On such evidence as continues to come to light via incidental publicity it is clear that this manifestly unlawful power is being exploited by some trustees seeking to intimidate if not actually evict their vulnerable charges. Clearly the will of parliament should be reinstated and the concomitant human right(s) restored.

9*       Ultimately we might invoke the historical – and indeed historic – case of Israel James Hussey [1924] 18 Criminal Appeal R 160, in which an ostensive lodger was deemed to have not just a defensible tenancy but a tenancy defensible with lethal force!

The appeal judges seem to have been asleep at the wheel. The judgement they endorsed is clearly an abnegation of both prior caselaw and parliamentary purpose and intent. We feel that had this case been allowed to go to the House of Lords it might have had a different outcome.

Apropos 7 above, Sir John Vinelott was inclined to make much of the periodic payment made by the resident. We italicize and deconstruct his peroration, viz.:

“… the weekly contribution paid by the almsperson goes towards the discharge of costs falling on the trustees, thereby liberating income of the charity for other purposes, including the maintenance of a reserve fund and the improvement and extension of the almshouses.”

In other words, absent a profit margin, not much different than the average commercial landlord then. He continues:

“ The weekly charge is not rent payable under a tenancy. Indeed, it is historically the case that, until comparatively recently, almspersons were not required to pay any weekly sum.”

He adduces no evidence on that specific. We can date payments back to 1985.

“The introduction of a weekly sum came with the introduction of housing benefit, to which almspersons would normally be entitled;…”

It is by no means the case that every almshouse resident is entitled to housing benefit. They are not necessarily destitute. It is that they qualify as beneficiaries because they can’t afford housing at prevailing market rates. Nevertheless he continues willy nilly:

“… payment of a weekly sum not exceeding the housing benefit would not result in any net loss to the almsperson and in effect the housing benefit would be available to the charity.”

His argument founders upon the fact that many – very possibly a majority – do indeed incur a net loss. As to the cost elements of that loss; central to housing benefit decisions is an assessment of eligible rent and ineligible services. Ineligible services include such things as the cost of heating, lighting, water rates and other support that may be included in the rent charged (utilities metered to individual dwellings are automatically excluded). These cost elements will not be met by Housing Benefit.

It must follow that, if the housing benefit rules are to be the criterion, what many residents are paying amounts to nothing other than rent and the resulting nexuses can be nothing other than tenancies.

Nor does the size of any periodic payment affect the issue. The legal fiction of the ‘peppercorn rent’ is sufficient to ensure a defensible tenancy.

Furthermore, this makes almshouse charities recipients of public funds and we might argue that this in turn brings them within the orbit of Human Rights. Be that as it may:

It may so be that the respondent charity, in accordance with the Housing Act 1985 Schedule 1, s.12 (Almshouses), had ‘no power under its trusts’ to grant a tenancy; but that would have been a peculiarity of its governing scheme to which we are not privy. In the general run of things, in the light of the statutory provisions cited above we see no impediment to the granting of secure tenancies by almshouse charities. Indeed, we contend that any governing scheme retrospectively so constructed is unlawful by reason of estoppel.

This discourse begs the question: what was the position prior to Gray v Taylor? That depended upon the construction of each individual governing ‘scheme’. Otherwise, it may be assumed that prior to Gray v Taylor trustees sensed the guiding hand of the judiciary upon their deliberations; otherwise, why would Gray have gone up against Taylor? More pertinently it may be assumed that benefactors, historical and aspiring, similarly sensed – and would have welcomed – that guiding hand upon their entrusted posterity.  Accordingly we postulate that judicial overview is the historically default position (as per the Underhill definition of trusts) and that the intervention of Gray v Taylor is a legalistic aberration that stands to be reversed.

In the later case of R v The Charity Commissioners for England and Wales ex parte Baldwin, it was determined that a decision of the Charity Commissioners not to intervene in an almshouse eviction process was not amenable to judicial review. On the basis that what is sauce for the goose is sauce for the gander it is our view that this determination can no longer hold in the light of R v Panel on Take-overs and Mergers, ex parte Datafin [1987] Q.B. 815. Go to the News page for the rationale.

Reverting to the judgment: at paragraph 39 Jack Beatson LJ appears to accept the Charity Commissioners conclusion that there was no set procedure which the Trustees were constitutionally bound to follow in making their decision to evict the resident; the operative word here being ‘constitutionally’. At paragraph 52 it clearly was accepted that Mrs Baldwin was going to lose her home. At paragraph 54 this was confirmed in that the trustees were content to consign her to the vagaries of the local council’s welfare department.

At paragraph 55 it is asserted that the trustees’ deliberations were not perverse in the Wednesbury sense. On the contrary, in view of the fact that those deliberations were in clear denial of statutory presumption and provision, we cannot but maintain that they were perverse in the extreme and stand to be reversed.

At paragraph 74 the will of historical benefactors seems to be presumptuously traduced merely to further the drift of the judgment. Thus in both arenas the will of parliament was disregarded and the hapless litigants nonsuited. Naturally we are calling for the restoration of the status quo ante.

Now in 2015 we have Cameron Mathieson, a deceased child (by his father Craig Mathieson) (Appellant) v Secretary of State for Work and Pensions (Respondent) Trinity Term [2015] UKSC 47. On appeal from: [2014] EWCA Civ 286. Here the Supreme Court, via the Human Rights Act, reached beyond the rights accruing under Article 14 ECHR (prohibition on discrimination) towards the wider rights conferred by the UN disability and children’s conventions. If we stretch the judgment somewhat and shift the axis away from childcare and towards elderly persons in almshouses, we can adduce “association with property” as per the aforesaid Article 14.

*Apropos the historical status of almshouse residents, here’s an interesting case:

The following criminal case (Israel James Hussey [1924] 18 Criminal Appeal R 160) comes to us courtesy of the website of an acquaintance of ours, who describes himself as a robust advocate of household defence and a failed novelist to boot!

Israel James Hussey, along with wife and children, rented a furnished room in the house of a Mrs West in Hilda Road, Brixton. Mrs West wanted him out for reasons that were allegedly founded in vindictiveness. She had given him a written notice to quit which he contended was not valid. Anticipating trouble, he barricaded himself in. On the 26 July 1924 Mrs West duly arrived, mob-handed and tooled-up. They proceeded to attack the lock jamb of the door, fully intending to implement a stated intention to manhandle Izzy, his wife and two infant children, along with their goods and chattels, out of the room, down the stairs, out the front door and onto the street. Responding to this threatened scenario, our Izzy broke a panel in the door and fired a pistol through the hole, wounding two of his adversaries.

With the casualties piling up the police naturally took an interest. Poor Izzy was given twelve months with hard labour for unlawful wounding. He appealed the conviction and sentence. He walked. The clincher was the citing of a standard authority, Archbold’s Criminal Pleading, Evidence & Practice, 26th edition, p.887 of which reads as follows:

“In defence of a man’s house, the owner or his family may kill a trespasser who would forcibly dispossess him of it, in the same manner as he might, by law, kill in self-defence a man who attacks him personally with this distinction, however, that in defending his home he need not retreat, as in other cases of self—defence, for that would be giving up his house to his adversary.”

The Lord Chief Justice ruled that “No sufficient notice had been given to the appellant to quit his room, and therefore he was in the position of a man who was defending his house – even though he was merely a tenant”. The crown barrister had argued that the Archbold citation was anachronistic and archaic but the LCJ ruled that it was still the law.

Note that our Izzy was deemed to be a tenant despite that he lived under the same roof as his landlord (lady, actually) so what would now be deemed a lodger was then deemed a tenant. On the ground that the greater (exclusive possession) includes the lesser (shared accommodation) and that any periodic payment of a peppercorn or greater statutorily qualifies as rent (whatever a landlord may elect to call it), that, presumably, was the default situation with almshouse residents prior to Gray v Taylor. Reverting to the case:

Nowadays the pundits argue that the Archbold defence is superseded by the constraints of section 3 of the Criminal Law Act 1967 (“reasonable force” in all its nebulosity). Furthermore, that the hypothetical landlord would be pursuing a claim of right to which the tenant should accede.

Ah, but what if the defending occupant were a calumniated almshouse resident post Gray v Taylor; a mere licensee shut out from natural justice and human rights? He/she will not have received ‘sufficient notice’ because neither legal notices nor ‘claims of right’ can be founded upon a libel. The notice to quit would by definition be ‘insufficient’. We would argue that the situation defaults to Hussey. So, if you find yourself in this situation:-

  • If you’re a licensee (and have not been inveigled into a shorthold tenancy in which case you’re stuffed!)
  • If you can truly demonstrate that trustees’ application for a possession order was founded upon grounds which are libellous
  • And you’re prepared to withstand some hassle from the CPS for firearms violations

Barricade yourself in, wait for the bailiffs to break down your door, then – SHOOT THE BASTARDS!

Of course the local SWAT squad will be along pretty pronto, all tooled up for quick action. Best not to shoot them.

When the dust settles and with the highly politicised R v Anthony Edward Martin  looming in the background, the justiciary will approach your case with a high degree of circumspection. The only charge likely to stick would be ‘illegal possession of a firearm’. You’d probably get banged up five years max, all found and rent paid by the taxpayer. You’d be lauded and feted as a celebrity by staff, inmates and the general public alike. You’d sign up with the tabloid offering the most dosh for your story and you’d then have enough money to pursue a libel action from your prison cell. That’d teach ‘em. You’d be out in two and a half anyway (earlier, if you can swing it on health grounds) and off to a happy retirement on the proceeds in a resort of your choice. What could possibly go wrong?

As you can see, we sometimes set out to entertain as well as to inform. And, if you’re up to it, to be informed…

We are advised to add that we are not seriously advocating the shooting of bailiffs (nor yet the impugning of their collective familial legitimacy) but we would be remiss in our objectives if we failed to pursue this particular ramification of Gray v Taylor to its logical(?) endpoint.

Go now to An Equitable Interest