DESCRIPTIVE RUBRIC

Landlord and tenant – Public sector housing – Tenants rights – Right to purchase – Whether secure tenancy – Better performance of duties – Country park ranger – Normal employment and callout duties, duty to respond to emergencies and commitment to provide security presence – Circumstances in which exception established and application refused – Housing (Scotland) Act 1987, as amended, Section 68(4) – Housing (Scotland) Act 2001, Sch 1, para 1(1)

Brennan v Angus Council
13 October 2010
LTS/TR/2010/04

The applicant was employed as a country park ranger. He had initially had accommodation in one country park, where his employment was based. Accommodation was then found for him at a lodge house beside an entrance to another country park. Subsequently, that park became his principal place of employment. His tenancies and his contract of employment expressly referred to the requirement to occupy for the better performance of his duties, but there was very little specification of any duties to which this related.

The Tribunal recognised that even where the duty to occupy for better performance was specifically expressed, the substance of it had to be established. Employers who failed properly to record the extent of the relevant duties ran the risk of failing to establish the exception. The Tribunal considered the evidence about normal, public holidays and overtime duties; about call-out duties; about responding to out of hours emergencies; and about the extent of commitment to provide an overnight security presence. The Tribunal also considered correspondence and documentation, particularly at the time when the current accommodation was obtained for the applicant. There was some substance in the requirement for a security presence, the house having been obtained (from the water authority) with security specifically in mind. This had been reflected and understood in correspondence with the applicant. The Tribunal held that the exception was in the circumstances established, and refused the application.

Main authorities referred to:-

De Fontenay v Strathclyde Regional Council 1990 SLT 605
Winthrop v East Dunbartonshire Council, LTS/TR/1999/11, 15.2.2000
Smith v Dundee District Council, LTS/TR/2000/18
MacFadyen v Argyll & Bute Council, LTS/TR/2005/7, 6.11.2006


See full decision:  LTS/TR/2010/04