DESCRIPTIVE RUBRIC

Landlord and tenant – Public sector housing – Tenants rights – Right to purchase – Whether tenancy secure – Better performance of duties – Ferry operative – Duties connected with emergency out-of-hours service – Housing (Scotland) Act 2001, Schedule 1, paragraph 1

MacFadyen v Argyll and Bute Council
6 November 2006
LTS/TR/2005/7

The applicant was an operative of a small vehicle ferry running between two islands. He became tenant of a ferryman’s house close to the slip when he entered the employment. The missives of let made clear that he was to occupy the house for the better performance of his duties, but none of the documentation in relation to his contract of employment referred to any obligation to reside in the house. Ferry operatives worked on a shift rota pattern. An emergency out-of-hours service required one ferryman on stand-by, with a second ferryman being mobilized to assist. Applicants for employment were made aware of this service. The applicant had previously been told that if he could get to the ferry within 30 minutes that would be acceptable. More recently it had been indicated that stand-by ferrymen were expected to be able to mobilize the ferry, including collecting it from its moorings and making it ready, within 30 minutes of a call. The applicant’s rent had not been increased annually like that of ordinary tenants.

The respondents accepted that they had to establish an implied term which met the statutory test and that this could only arise in relation to out of hours callouts. The applicant was admittedly required to carry out stand-by duties for which he was paid. Further, even when not on stand-by duty he had a duty to arrange with the other ferrymen which one would be available as the second man. The applicant required to live within close proximity. It was sufficient if, although the job could be done from elsewhere, it could not be done as effectively. The applicant did not have an alternative residence.

In his submissions, the applicant referred to problems in relation to working conditions, and also to the difference between his rent and that of his neighbour. His day-to-day work could be done from a different property. There was also a regulatory problem about attending callouts after a working day in excess of 14 hours.

Held, refusing the application, there was an implied obligation of the contract of employment, and it was for the better performance of the applicant’s duties. The house was clearly a ‘tied house’, but that was not the test. Following the Tribunal’s summary of applicable principles in Smith v Dundee City Council, there had to be a contractual obligation, express or implied, to occupy the house. To be implied, the term had to be necessary to give effect to the practical result which the parties intended. If so, the test of better performance had to be considered. Since the applicant received and accepted payment for stand-by duty, that duty (but not the arrangements for ferrymen not on stand-by) was contractual. On the evidence, there was a reasonable practical requirement to live within not more than 10 minutes’ journey time from the slip. There was no indication that the applicant could obtain other accommodation to enable him to comply. A contractual requirement to live in the house of which he was given the tenancy in connection with his employment should be implied. There being a real requirement to maintain readiness to run the out of hours service, the obligation was for the better performance of duties and in particular the stand-by duty.

Cases referred to:-

Fisher v Fife Regional Council 1989 SLT (Lands Tr) 26
De Fontenay v Strathclyde R. C. 1990 SLT 605
Smith v Dundee City Council 2001 Hous LR 78
McAuslane v Highland Council 23.12.2003, LTS/TR/2003/11


See full decision:  LTS/TR/2005/7