In a recent case, the Court of Appeal affirmed that almshouse residents do not have the rights of tenants. It also ruled that almshouse beneficiaries cannot validly claim that denying them tenancy status amounts to a discriminatory breach of their human rights.
The almshouse organisation in this case was the Ashtead United Charity (the Charity). Its governing document goes into some detail about how the almshouses are to be run. For example, the residents "shall be poor single women of not less than 50 years of age who are inhabitants of the ancient parish of Ashtead…", residents cannot be absent from their almshouses for more than 28 days without the Charity's consent, and the trustees are empowered to set aside the appointment of any resident on various grounds.
Mrs Watts lived in one of the Charity's almshouses (the Property). The terms of her appointment occasionally referred to her "tenancy" but also included provisions prohibiting her from having visitors without the trustees' consent, gave the trustees the right to require her to move to another almshouse and stated: "Neither the resident(s) nor any relation of his/hers/theirs will be a tenant of the charity or have any legal interest in his/hers/their almshouse". Mrs Watts signed these terms on 1 October 2004.
She became a very difficult neighbour so, in September 2014 the trustees served her with notice to quit and obtained a possession order against her. The Court determined that Mrs Watts did not occupy the Property as a tenant and that she did not have a defence based on discrimination compared to occupants of public sector and social housing accommodation.
The finding that Mrs Watts was not a tenant was largely based on the case of Gray v Taylor (Gray), in which the Court of Appeal found that the grant of a tenancy to an almshouse resident would be inconsistent with the trustees' duty to provide accommodation for deserving persons. Consequently, the relationship was one of licensor/licensee (meaning, broadly, that the only rights the almsperson had were the contractual rights set out in the terms of appointment – they did not extend to the wider rights a tenant would have).
Mrs Watts appealed to the Court of Appeal, arguing:
- that Gray was wrongly decided and that she was a periodic tenant of her home;
- that almshouse occupiers are entitled to be treated as tenants by virtue of Article 14 of the European Convention on Human Rights (the ECHR), as read in conjunction with Article 8.
The Court of Appeal upheld Gray, finding that there were no material distinctions between that case and this.
The more novel question was whether Mrs Watts had a human rights claim.
Article 8 of the ECHR guarantees everyone "respect for his private life and family life, his home and correspondence". Interference with this right is only permissible if it is "in accordance with the law and is necessary in a democratic society in the interests of" safeguarding other interests, listed in Article 8. Article 14 of the ECHR requires the enjoyment of the rights in the ECHR to be secured "without discrimination on any ground such as sex, race, colour, language, religion [etc] … or other status". Discrimination can only be justified if it is a proportionate means of achieving a legitimate aim.
Only 'public authorities' have to comply with human rights law, and Mrs Watts had already conceded that the Charity was not a public authority. Because of this, it was impossible for her to argue that the Charity had breached her Article 8 rights. However, to make a successful Article 14 claim, it is not necessary to prove infringement of another ECHR right; it will be enough if the subject matter of the alleged discrimination falls within the ambit of one or more of the other rights.
The Court of Appeal assumed – but without making a positive determination – that Mrs Watts' housing arrangements fell within the ambit of Article 8. Having made this assumption, it moved onto the next issue. To bring a successful Article 14 claim, Mrs Watts needed to show that her status as an almshouse resident amounted to a personal characteristic analogous to those set out in Article 14. Again, the Court did not reach a firm conclusion on this point, but identified several features that strongly suggested that being an almsperson was not a qualifying characteristic. The Court then turned to the final issue of proportionality, and dismissed Mrs Watts' claim on the grounds that any difference in treatment between almspersons and occupants of other public/social housing was a proportionate means of achieving the legitimate aim of balancing the interests of charities and current/future beneficiaries.
This finding should be welcomed by almshouse charities, since tenants have a number of rights that licensees do not, such as the right not to be evicted without a court order.
It is trite to say that every case turns on its own facts, but all almshouse charities have some eligibility criteria for accommodation. As long as such criteria exist, giving almspersons the (proprietary) rights associated with a tenancy is likely to conflict with the duty of trustees to ensure that only qualifying beneficiaries occupy their properties, thereby precluding any finding that almspersons are tenants.
To evict an almsperson, it will still, of course, be necessary to show that they are no longer entitled to remain in their almshouse, whether because they no longer qualify as a beneficiary, because they have breached the terms of their appointment, or for some other reason. In addition, charities should have an eye to the reputational repercussions that may flow from dealing insensitively with troublesome beneficiaries. The trustees of almshouse charities may, periodically, want to review their terms and conditions of appointment to ensure they remain fit for purpose, and should consider taking legal advice before evicting a resident.
If you require further information on anything covered in this briefing please contact Rachel Holmes([email protected]), Mark Gauguier ([email protected]) or your usual contact at the firm on 020 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, March 2017