West London National Health Service Trust v Keith Douglas Palmer [2026] EWHC 2183 (KB)

[2026] EWHC 2183 (KB)

Case No KB-2025-000565

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 18 th August 2026

Before

DAVID O'MAHONY SITTING AS A DEPUTY JUDGE OF THE HIGH COURT

Between

West London National Health Service TrustClaimant

Keith Douglas PalmerDefendant

Nicholas Grundy KC (instructed by Bevan Brittan LLP) for Claimant

Martin Young (instructed by SO Legal) for Defendant

Hearing Hearing dates: 7 th– 9 th July 2026

Draft judgment circulated to parties: 12 th August 2026

APPROVED JUDGMENT

DHCJ O’Mahony:

[1]This is a claim for possession of residential premises and for payment of outstanding rental and utilities charges.

The parties

[2]The parties The claimant is an NHS Trust. It owns and manages Broadmoor Psychiatric Hospital. It is the freehold owner of a house at 29 Eastern Lane, Crowthorne, Broadmoor, Berkshire RG54 7EX (“the property”). The house is within the estate of Broadmoor Hospital.

[3]The defendant is a retired nurse. He was granted a tenancy of the property on 29th November 1988 by the claimant’s predecessor in title: the Secretary of State for Social Services. Since 1976, the defendant had been employed as a staff nurse at Broadmoor. The defendant’s full-time employment at the hospital ended in 2009. He continued to work part-time there until 2014. He remains in occupation of the property with his wife, daughter and grandchild.

The facts

[4]The facts The tenancy agreement provides, so far as is relevant, as follows:

“1. The Secretary of State lets on a service tenancy and the tenant takes as a service tenant all that (sic) the premises 29 Eastern Lane to hold the same from the first day of December 1988 for one month and so on from month to month until the tenancy is determined as hereinafter provided at the monthly rent of £ 87.46 payable on the last day of each month the first payment to be made on the thirty first day of December 1988. PROVIDED ALWAYS AND IT IS HEREBY AGREED that the monthly rent payable by the tenant as from the first day of JUNE of the second and every subsequent year of the demise hereby granted shall be such sum as shall be assessed by the Secretary of State by his duly authorised agent the Hospital Administrator for the time being aforesaid and notified to the tenant in writing. 2. The Tenant covenants with the Secretary of State as follows: (a)… (b) To pay all existing and future rates or contributions in lieu of rates and taxes and other outgoings imposed or charged upon the premises or upon the owner or occupier in respect thereof. … (j) To defray all costs of heating and lighting the premises. … 4. It is mutually agreed as follows: (a) If any part of the rent shall remain unpaid for seven days after the same shall become payable the Secretary of State may at any time thereafter without previous notice resume possession of the premises hereby let thereby terminate the tenancy but without prejudice to any remedy he may have against the tenant under this agreement. (b) Either party may terminate the tenancy at the end of the second month thereof or subsequently by giving to the other one month’s notice in writing expiring on any one of the days fixed for the payment of rent…”

[5]The defendant accepted in the course of being cross-examined, that he was only able to rent the property in the first place because he was an employee of Broadmoor Hospital. He also accepted that, at the time he entered into the agreement, he understood that the continuation of the tenancy depended, in part, on him remaining an employee of Broadmoor.

[6]In 1989, the ownership of Broadmoor Hospital (and thus the property) was transferred from the Secretary of State to the Special Hospitals Service Authority (“the SHSA”). In 1996, the SHSA was abolished and the hospital was transferred to the Broadmoor Hospital Authority (“the BHA”). The BHA was dissolved on 31st March 2001. The hospital was transferred to the Trust on 1st April 2001. The claimant became the registered freehold owner of the Broadmoor Hospital estate on 26th July 2003.

[7]When the hospital was owned by the Secretary of State and by the SHSA, the estate included a large number of residential properties that were let to members of staff. In 1995 the SHSA was managing around 345 such properties, of which 245 were on the Broadmoor estate.

[8]In around 1991, the SHSA offered certain tenants the opportunity to buy the properties they rented. The properties in Eastern Lane were not included in that scheme. On 1st April 1996, the SHSA transferred most of its remaining housing stock to the Thames Valley Housing Association (“TVHA”). Again, the properties in Eastern Lane were not included.

[9]The defendant’s rent increased over time. From 1st October 2005 it was £ 483.11 per month. On 1st December 2007 it increased to £ 558.28 per month. It remained at that rate until 1st September 2010, when it was increased to £ 750 per month as a result of a rent valuation report. The defendant took issue with this increase but he paid the new rent. The rent remained the same for the next ten years.

[10]On 7th April 2020, the claimant wrote to the defendant explaining that an independent review of the rent had been carried out by a district valuer. The claimant said that rather than increase the rent in one go, it would adopt a phased approach. The phased approach was to be that: the rent would increase to £ 875 per month from 1st June 2020; it would increase to £ 1,000 per month from 1st June 2021; and it would increase to £ 1,100 per month from 1st June 2022.

[11]On 30th April 2020, the claimant wrote again acknowledging that there were problems relating to the cesspit in the back garden of the property. It said that there would be delays in resolving these due to the Covid-19 pandemic. It said that in the meantime, the defendant’s rent would not increase above the £ 750 per month he was paying. On 18th May 2021, the claimant wrote to the defendant saying that the issues relating to the cesspit and issues relating to bees had been resolved and that from 1st June 2021, his rent would be £ 950 per month.

[12]The defendant has continued paying £ 750 per month. He has never paid the increased rent.

[13]The properties in Eastern Lane are not connected to the main sewerage drain or supplied directly with water, gas or electricity. They have septic tanks and obtain their water, gas and electricity through the hospital networks. It follows from this that the defendant is invoiced for utilities by the claimant. The defendant has not paid any of the utilities invoices issued by the claimant since April 2014. The defendant accepted when being cross-examined, that he remained liable to pay for the utilities he had used. He argued that his liability to pay was not enforceable because of a dispute about his septic tank that had not yet been resolved.

[14]On 30th January 2024, the claimant served the defendant with a Notice to Quit. It expired on 31st March 2024.

The issues

[15]The issues The issues are as follows:(a) Is the tenancy to be classified as a common-law tenancy or a tenancy to which the statutory protections in the Rent Act 1977 (“the 1977 Act”) apply. The resolution of this issue depends on the defendant’s case that section 13 of the 1977 Act, which takes his tenancy outside those protections, discriminates against him under

Article 14 of the European Convention on Human Rights

(“the Convention”) in the exercise of his rights under Article 8 or Article 1 Protocol 1. The defendant argues that section 13 should be read as not applying to his case under section 3 (1) of the Human Rights Act 1998 (“the 1998 Act”), or alternatively, that he is entitled to a declaration of incompatibility under section 4 (2) of the 1998 Act. The Secretary of State has been notified of that application but has not intervened;

(b) If the tenancy does attract the protections in the 1977 Act, is it reasonable to make a possession order within the meaning of section 98 of the 1977 Act read with Cases 1 or 8 of Schedule 15 to that Act;

Article 8 of the Convention

to make a possession order;

(d) Whether the defendant’s rent was validly increased to £ 950 and therefore whether he is liable for unpaid rent since 1st June 2021 (the defendant also counter-claims for re-imbursement on the basis that if the tenancy does attract the protections in the 1977 Act, his rent has never been validly increased from the amount set out on the face of the tenancy agreement); and

(e) Whether the defendant has any defence to the claim for immediate payment of the outstanding utilities charges.

(i) The relevant statutory provisions

[16]Section 13 (1)(a) of the 1977 Act provides:

“(a) a tenancy shall not be a protected tenancy at any time when the interest of the landlord under the tenancy belongs to Her Majesty in right of the Crown or to a government department or is held in trust for Her Majesty for the purposes of a government department…”

[17]The National Health Service and Community Care Act 1990 (“the 1990 Act”) created the power to establish National Health Service Trusts and to transfer health service functions to such a trust. One of the effects of the transfer of a health service function to an NHS Trust was its transfer from the Crown to a body corporate. By section 60(1) of the 1990 Act various Crown immunities, including those related to the holding of land, were removed. However, section 60 (1) was subject to a number of exceptions and transitional provisions. Section 60

(2) of the 1990 Act provides:

“(2) In Schedule 8 to this Act- (a) Part I has effect to continue certain exemptions for health service bodies and property held, used or occupied by such bodies; (b) The amendments in Part II have effect, being amendments consequential on subsection (1) above; and (c) The transitional provisions in Part III have effect in connection with the operation of subsection (1) above.”

[18]Schedule 8 deals with a range of statutory provisions which would have an impact on the operation of an NHS Trust.

[19]Part III of Schedule 8, provides, so far as is relevant:

“19 (1) This paragraph applies to a tenancy – (a) Which was entered into before the appointed day [1st April 1991]; and (b) Which is of land in England and Wales which, immediately before the appointed day, was functional health service land. (2) If and so long as the interest of the landlord under a tenancy to which this paragraph applies continues on and after the appointed day to belong in fact either to the Secretary of State or to an NHS trust, it shall be taken to belong to a government department for the purposes of- (a)… (b) section 13 of the Rent Act 1977 (earlier Crown tenancies not to be protected tenancies)…”

[20]The parties agree that the defendant’s tenancy falls within paragraph 19 of Schedule 8 of the 1990 Act and therefore section 13 of the 1977 Act.

[21]Sections 3 and 4 of the 1998 Act provide, so far as is relevant, as follows:

“3 Interpretation of legislation (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. (2) This section – (a)… (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation..” “4 Declaration of incompatibility (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the Court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility…”

[22]Articles 8 and 14 and Article 1, Protocol 1 of the Convention are in the following terms: “Article 8: Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” “Article 14: Prohibition of discrimination The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” “Protocol 1, Article 1: Protection of property Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure payment of taxes or other contributions or penalties.” (ii) The arguments The defendant

[23]The defendant relies on his possession of “other status” within the meaning of Article 14. This is particularised as “the interest of the landlord belongs to His Majesty in right of the Crown or to a government department”. In response to Mr Grundy KC’s argument that the question of status had not been pleaded clearly enough, Mr Young confirmed that he was relying on this as an “other status”.

[24]Mr Young argued that the facts of this case are indistinguishable from those considered by the European Court of Human Rights in Larkos v. Cyprus

(1990) 30 EHRR 597

. In that case the ECtHR found there to have been a breach of Article 14 read with Article 8 in circumstances where a government tenant was exempt from the Cypriot Rent Control Law 1983, which applied to certain private tenancies. The court in Larkos said it did not need to consider whether there had been a breach of Article 14 read with Article 1, Protocol 1. Mr Young argued that if it had gone on to consider Article 1, Protocol 1, the court would have reached the same conclusion, because a tenancy is a “possession” within the meaning of that Article. He relied on the decision of the Court of Appeal in Kay v. Lambeth LBC

[2005] QB 352

at paragraphs 107-108 for that proposition.

[25]In his Defence, the defendant asserted that there was no need for the exemption from the 1977 Act for Crown or NHS tenants.

[26]In his skeleton argument, Mr Young dealt with the claimant’s pleaded justification for the immunity in the first place. That justification was that it was necessary to ensure that the Crown and government departments could seek possession of residential properties for the better management of state assets and, as regards the property in question, to ensure the claimant could house key workers for the benefit of the wider public. Mr Young argued that this did not stand up to examination for the following reasons: it was disapplied for post 1st April 1991 tenancies; the Rent Act 1977 does not prevent recovery of possession on statutory grounds; the asserted benefit to the public is diffuse when compared to the acute need of the defendant and his family; the number of tenancies to which the retained exemption now applies is very small; and in any event, the claimant in fact disposed of most of its housing stock as described above.

[27]Also in his skeleton argument, Mr Young said that there would appear to be no reason for disapplying the exemption for tenancies created after 1st April 1991 but retaining it for tenancies created before that date.

[28]In his oral submissions, Mr Young accepted that Mr Grundy KC might be correct that the reason for the retention of the exemption might have been that the NHS Trusts who succeeded to the title to the land had not granted the pre-1991 tenancies and should therefore be put in a position to determine for themselves the relevant terms on which their properties would be let. Mr Young relied on a paper created by the SHSA on 2nd December 1991 to explain the changes affecting staff housing that the SHSA proposed to introduce. He said that that document indicated that the reason for the retention of the exemption was to facilitate the right to buy proposals and the transfer to the TVHA. Mr Young accepted that there was no other material before me that provided evidence of the purpose of the retention of the exemption. He said that he had searched Hansard but had not found anything that was relevant to that issue.

[29]Mr Young took the test for reading a statutory provision compatibly with the European Convention from Ghaidan v. Godwin Mendoza

[2004] 2 AC 557

. He summarised the effect of the test by saying that a meaning which departs substantially from a fundamental feature of a statute is likely to have crossed the boundary between interpretation and judicial legislation.

[30]Mr Young’s primary position under section 3 of the 1998 Act, which he accepted was a “bold submission”, was that to read section 13 of the 1977 Act “down to nothing” would not be a departure from a fundamental feature of the statute. He said that that is what the Court of Appeal had in effect done in Cachia v. Faluyi

[2001] 1 WLR 1966

, a case to which Lord Steyn had referred in Ghaidan at page 580H.

[31]Mr Young’s fall-back position under section 3 was that I should read words into section 13 of the 1977 Act as follows (the additional words are in italics):

“Except in so far as this subsection (1) has been removed for any tenancy which is otherwise a protected tenancy and disregarding the fact that the interest of the landlord may belong to an NHS Trust, or as is provided by subsection (2) below…”

[32]However, he accepted that this would involve disapplying paragraph 19 (2)(b) of Schedule 8 to the 1990 Act.

[33]Mr Young said that the proper approach to an application for a declaration of incompatibility is to be taken from Secretary of State for Business and Trade v. Mercer

[2024] UKSC 12

. The claimant

[34]Mr Grundy KC began by challenging what he said was the effect of one of Mr Young’s submissions, that the consequence of the above amendments made by the 1990 Act was that tenancies created by an NHS Trust after 1st April 1991 had full statutory protection. He provided a detailed note to explain the position.

[35]He said that it was, in summary, as follows. The 1977 Act was superseded by the Housing Act 1988 (“the 1988 Act”) as regards new residential tenancies, with effect from 15th January 1989. The 1977 Act only continued to apply to tenancies granted before that date. It follows, he said, that no new 1977 Act tenancies could have been granted after 15th January 1989. Paragraph 19 (2)(a) of Schedule 8 of the 1990 Act preserved the Crown immunity contained in paragraph 11 of Schedule 1 to the 1988 Act in the same way as paragraph 19 (2)(b) preserved the immunity in section 13 of the 1977 Act. In addition, paragraph 11 of Schedule 1 to the 1988 Act continued to apply to tenancies granted by the Crown or a government department. Mr Grundy KC pointed out that in addition, paragraph 10 of Schedule 10 to the 1990 Act amended discretionary Ground 16 for possession in Schedule 2 to the 1988 Act (where the tenancy was granted in consequence of employment) to ensure that it extended to any tenant who had been granted a tenancy either by the Secretary of State or an NHS Trust in consequence of his or her employment by an NHS Trust. This was carried over into the mandatory Ground 5C for possession in consequence of employment, inserted into Schedule 2 of the 1988 Act by the Renters Rights Act 2025 (which came into force for these purposes on 1st May 2026).

[36]Mr Grundy KC summarised the position as follows:(a) between 1st April 1991 and 30th April 2026, if a tenancy granted by an NHS Trust was an assured shorthold tenancy, the NHS Trust landlord had a mandatory ground for possession (in effect the security of tenure was no better than a common-law tenancy);

(b) between 1st April 1991 and 30th April 2026, if any such tenancy was an assured tenancy that was not an assured shorthold tenancy, the landlord had a discretionary ground for possession when the tenant’s employment ended; and

(c) since 1st May 2026 an assured tenancy cannot be an assured shorthold tenancy but there is a mandatory ground for possession when the tenancy was granted in consequence of the tenant’s employment and that employment has ceased.

[37]In the end, Mr Young accepted the accuracy of Mr Grundy KC’s note, with the rider that there were different formal requirements for a tenancy to be an assured shorthold tenancy before February 1997.

[38]Mr Grundy KC accepted that Article 8 is engaged for the purposes of Article 14 on the basis that the property at Eastern Lane is the defendant’s home.

[39]He argued, first, that the defendant has not pleaded an “other status” within the meaning of Article 14. He said that in English law, in order to qualify as an “other status”, that status must be defined otherwise than entirely by the alleged discrimination: Haringay LBC v. Simawi

[2019] EWCA Civ 1770

at paragraph 41. He said that the defendant’s argument was in effect that the alleged discrimination is the Crown immunity and the pleaded “other status” is also the Crown immunity.

[40]Mr Grundy KC argued that Larkos could not be relied on as a basis for recognising “government tenant” as an “other status”. He pointed out that the judgment of the ECtHR in Larkos said that the issue had not been disputed. He sought support for his submission on Larkos in the judgment of Hildyard J in Southward Housing Co-operative Ltd v. Walker & Ors

[2016] Ch 443

at paragraph 183 and of the Court of Appeal in Stewart and Ors v. Watts (Secretary of State for Communities and Local Government and Ors intervening)

[2018] Ch 423

at paragraph 80. Hildyard J said that the judgment in Larkos was “…somewhat brief as to the reasons for (impliedly) accepting that the applicant had “other status””. Etherton MR in Stewart said that it did not appear that the issue of qualifying status was expressly addressed in Larkos.

[41]Mr Grundy KC argued that the results in both Southward and Stewart supported his submission as to the existence of an “other status” in this case. In Southward Hildyard J (by a somewhat different route to that argued for by Mr Grundy) held that the status of being a tenant of a housing association that is fully mutual (as opposed to some other housing association) could not be relied upon for the purposes of Article 14. Stewart concerned the exemption of residents of almshouses from secure and/or assured tenancy status. Etherton MR quoted the judgment in Southward with apparent approval and said that while he did not need to decide the point because the case could be decided on the issue of justification, the features that he listed “strongly suggest that Mrs Watts’s status as an almsperson is not a qualifying characteristic for the purposes of article 14” (see paragraphs 82 and 83 of the judgment).

[42]On the question of justification, Mr Grundy KC argued that the test to be applied in this case is the same as the test that would be applied in a case concerning the provision of social housing. That is to say, where the state puts forward its reasons for having countenanced the adverse treatment, it establishes justification for it unless the complainant demonstrates that it was manifestly without reasonable foundation: see Simawi at paragraph 63, quoting Lord Wilson JSC in R (DA) v. Secretary of State for Work and Pensions

[2019] PTSR 1072

at paragraphs 65 and 66. Mr Grundy KC relied on the fact that the ECtHR had also applied that test to an Article 1, Protocol 1 challenge to the right of enfranchisement of long leaseholders under the Leasehold Reform Act 1967 in James v. United Kingdom

(1986) 8 EHRR 123

at paragraph 46.

[43]Mr Grundy KC said that the tenancy in question was granted in consequence of the defendant’s employment and is of property in the vicinity of that employment. He said that to subject that tenancy to the 1977 Act would restrict the efficient use of public assets and to restrict the claimant’s ability to house key workers. He also relied on the fact that the rationale for the rental protections in the 1977 Act did not apply to the property in question because accommodation provided by the Crown was not subject to market pressures. He said that it was impossible for the defendant to establish on a basis that he had not pleaded that the exemption as applied to his situation was manifestly without reasonable foundation.

[44]In any event, Mr Grundy KC argued that Mr Young’s proposals for reading the legislation compatibly with the Convention would, as he argued Mr Young had effectively conceded, emasculate the legislation. (iii) Discussion

[45]There is a close interaction between sections 3 and 4 of the 1998 Act. The same tight focus on the specific facts of the individual case is required under both sections: Imperium Trustees (Jersey) Ltd v. Jersey Competent Authority

[2025] 1 WLR 3225

at paragraph 80 and Wilson v. First County Trust Ltd (No 2)

[2004] 1 AC 816

at paragraph 14.

[46]The defendant identifies the relevant statutory provision for these purposes as section 13 of the 1977 Act.

[47]The first question is whether the legislation, as it applies to the defendant according to its terms, breaches Article 14. If it does, the next question is whether it is possible to read and give effect to it in a way that is compatible with Article 14. It is only if that is not possible, that the question arises as to whether there should be a declaration of incompatibility.

[48]I take the proper approach to the question of whether there has been a breach of

Article 14 of the Convention

from the following passage from the judgment of Lewison LJ in Simawi:

“25. In considering whether there has been unlawful discrimination under article 14 , the court asks itself a series of questions, which interlock and in some cases overlap. The questions (and the order in which they are asked and answered) have been formulated in various ways. I take the formulation from the judgment of Baroness Hale of Richmond PSC in R (Stott) v Secretary of State for Justice [2020] AC 51 , para 207: “In article 14 cases it is customary in this country to ask four questions: (1) does the treatment complained of fall within the ambit of one of the Convention rights; (2) is that treatment on the ground of some ‘status’; (3) is the situation of the claimant analogous to that of some other person who has been treated differently; and (4) is the difference justified, in the sense that it is a proportionate means of achieving a legitimate aim?””

[49]As I say above, at least as regards

Article 8 of the Convention

, it is common ground that the answer to the first question is “yes”. Mr Grundy KC did not address the case based on Article 1, Protocol 1 in terms. However, it seems to me that on the basis of the way the defendant put his case (as to which, see under the heading “status”, below), the same analysis would apply to the defendant’s case under Article 14 read with Article 1, Protocol 1 as to his case under Article 14 read with Article 8. That is to say, the same whether Article 14 is engaged because of the defendant’s right to his home or engaged because of any right of the defendant to his tenancy as a possession. For present purposes, the other articles are simply the basis on which the analysis in Article 14 is engaged in relation to his occupation of 29 Eastern Lane. I therefore do not need to consider his case relying on Article 14, read with Article 1, Protocol 1 separately. Status

[50]I accept Mr Grundy KC’s submission that, as a matter of domestic law, to qualify as an “other status” for the purposes of Article 14, the status cannot be one that is defined entirely by the alleged discrimination: Simawi at paragraph 41. However, I do not accept Mr Grundy KC’s submission that that is what the defendant is seeking to do in this case.

[51]The status that is pleaded and on which Mr Young relies is as a tenant whose landlord is the Crown or a government department. The discrimination that is alleged, is the exemption of those with that status from the protections in the 1977 Act. The asserted status arises from the tenancy agreement and exists independently of the exemption complained about. It seems to me that Mr Grundy KC’s argument elides the criteria on the basis of which the alleged discrimination occurs, with the creation of that which satisfies the criteria in the first place. That does not seem to me to be what the rule envisages.

[52]That that is so can be seen from comparing the reasoning in R v. Docherty (Shaun) [2017] 1 WLR with that in R (Stott) v. Secretary of State for Justice

[2020] AC 51

, both of which were analysed by Lewison LJ in the relevant parts of Simawi.

[53]In Docherty the Supreme Court decided that one of the status’ the claimant relied on fell foul of the rule. That was because the discrimination he was alleging was that he had been made the subject of an indeterminate sentence of imprisonment for public protection and the status he was relying on was that he was a prisoner who was subject to such a sentence. It followed that the suggested status was defined entirely by the alleged discrimination (see paragraph 63 of the judgment).

[54]In Stott the Supreme Court decided that the claimant did not fall foul of the rule. That was because the discrimination he was alleging was that he was subject to a different early release regime, but the status he was relying on was as a prisoner who was subject to an extended determinate sentence. The Secretary of State argued that the rule was breached because the release provisions which he complained about flowed from the status he asserted (see paragraph 68 of the judgment). The court rejected that argument on the basis that the status as a prisoner the subject of a specific class of sentence existed independently of the complaint of discrimination (Lady Black JSC at paragraph 75, Baroness Hale PSC at paragraphs 210-212 and Lord Mance at paragraph 236).

[55]Were the issue to be free of domestic authority, I would incline to the view that the status that the defendant relies on is capable of being an “other status” for the purposes of Article 14. I say that for the following reasons.

[56]The ECtHR in Larkos accepted the concession that Mr Larkos’ status as a government tenant was such a status. It went on to say that “it sees no reason to hold otherwise”. I accept Mr Young’s submission that the fact that a point is conceded does not necessarily undermine its merit. The concession may be made precisely because the point is a strong one.

[57]As appears from the judgment of Lady Black JSC in Stott, the ECtHR examined the question of status in some detail in Clift v. United Kingdom Application number 7205/07 22nd November 2010. In Clift, the House of Lords had refused to recognise the applicant as having an “other status”. One of the reasons the House of Lords had come to that conclusion was that to recognise the relevant status would go beyond the Strasbourg jurisprudence. The ECtHR disagreed with the conclusion of the House of Lords on the status question. It said that “other status” should be given a wide meaning. Relevantly, it said that its past jurisprudence indicated that Article 14 was not confined to characteristics that are personal in the sense of being innate or inherent. One of the cases it expressly relied on for that statement was Larkos. It also relied on the fact that property was a listed status and that in James the status relied on had been a different category of property owner (see Lady Black JSC in Stott at paragraphs 24 and 25).

[58]In Stott Lady Black JSC set out the ways in which the ECtHR in Clift had differed from the approach of the House of Lords at paragraphs 33 to 35 of her judgment. At paragraph 35 she said that the ECtHR might possibly have gone further than the House of Lords“…in that it observed that not all the grounds could be said to be inherently linked to the identity of personality of the individual, highlighting the inclusion of property as a specified ground, and giving examples of characteristics which had sufficed, but were not innate or inherent.” . As I say, those examples included Larkos. Lady Black JSC adopted some aspects of the broader approach she had outlined at paragraphs 33 to 35 in so far as they were relevant to the facts of Stott at paragraphs 70 and following of her judgment.

[59]However, as Mr Grundy KC submits, the issue is not free of domestic authority. Neither party took me through the decision in Clift or any subsequent authorities, for the purposes of arguing that the reasoning in the two domestic cases that Mr Grundy KC cited should be affected by them (the decision of the ECtHR in Clift does not appear to have been cited in either). There were also no submissions directed to the question as to whether the decision in James and the defendant’s reliance on Article 1, Protocol 1 in this case was a ground for distinguishing them.

[60]In so far as it is relevant to this case, Southward Housing Co-operative Ltd v. Walker concerned an Article 14 argument that is very similar to the one advanced by Mr Young. The defendants were tenants of a fully mutual housing co-operative. Fully mutual housing associations were exempt from the protections in the 1988 Act. The defendants alleged that this breached their rights under Article 14 read with Article 8 on the basis that the protections afforded by the Protection of Eviction Act 1977 when compared to those in the 1988 Act were so limited that they had been unjustifiably discriminated against. They argued either that the relevant statutory provision should be read compatibly with Article 14 under section 3 of the 1998 Act so as to remove this discrimination or that a declaration of incompatibility should be made under section 4 of the 1998 Act.

[61]The defendants relied on Larkos to argue that the fact that they were tenants of a fully mutual housing co-operative gave them an “other status” within the meaning of Article 14.

[62]I have set out Hildyard J’s approach to Larkos above. At paragraphs 177 to 189, Hildyard J examined the defendants’ status by reference to the reasoning in a series of English cases, including the decision of the House of Lords in R (RJM) v. Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening)

[2009] 1 AC 311

. He concluded:186. However regarded, it is a matter of judgment along a sliding scale or a pattern of concentric circles. The further away from a characteristic which is innate and immutable and plainly pertaining to a person's personality, the less likely is the conclusion of “other status” the less the identified group said to be discriminated against is treated as separate and characterised by factors which might objectively be regarded as to do with or pertaining to the person, the less likely a conclusion that the discrimination is by reference to and reason of “other status”.

187. In my judgment, that which is said in this case to occasion the defendants' differential treatment is difficult to describe as a “personal characteristic”. The characteristic is not innate but acquired; it has nothing to do with what the person is, as distinct from what that person has chosen to do; the choice made is most unlikely either to reflect or to have affected the person's character; and the circumstances of fully mutual housing association tenants differ greatly. In short, any circle is far from the centre.

188. As to authority, no case, including the Larkos case 30 EHRR 597 , has even come close to recognising the status of being a tenant of a housing association that is fully mutual (as opposed to some other housing association) as being a prohibited ground for the purposes of article 14 . Indeed, in Lancashire County Council v Taylor (Secretary of State for the Environment, Food and Rural Affairs intervening)

[2005] 1 WLR 2668

the Court of Appeal held that the status of a tenant farmer who had breached one type of covenant (as compared to a tenant farmer who had breached a different type of covenant) was not protected by article 14 : see para 49, per Lord Woolf CJ (with whom Sedley and Gage LJJ agreed).

189. In my judgment, any differential treatment or discrimination is not the consequence of any “other status” such as to bring this case within Article 14.”

[63]I have set out a summary of the issue and the conclusion in Stewart, above. Etherton MR in that case noted that there had been an English case in which there had been no disagreement between counsel at first instance that being a Crown tenant could be a qualifying status. Etherton MR also noted that on appeal in one of the linked cases to that case the court had proceeded on the assumed basis that status as the spouse or former spouse of a Crown licensee potentially engaged Article 14 (see paragraph 81 of the judgment in Stewart). However, Etherton MR went on “82. The point was, however, considered in detail by Hildyard J in the Southward Housing Co-operative case…” . He then summarised Hildyard J’s reasoning and said there were features of the position of a tenant of an almshouse (the asserted status in Stewart)that “strongly suggested” that she did not have qualifying status.

[64]It seems to me that it would be inconsistent with the conclusion reached by Hildyard J in Southward and the apparent approval of Hildyard J’s reasoning by the Court of Appeal in Stewart (which also appears to have preferred that reasoning to the agreed or assumed position as to Crown tenants and licensees in the earlier cases it cited) for me to conclude that the status Mr Young relies on, is a qualifying status for the purposes of Article 14. In both Southward and in this case the defendants relied on a status that is defined by the class to which their landlords belong. In Southward Hildyard J decided that such a status was too far along the sliding scale from a relevant personal characteristic to qualify. Mr Young did not advance any attribute of a tenant of the Crown or a government department that would place them in a different position on that sliding scale than the tenant of a fully mutual housing association.

[65]It follows that the defendant has not established that he has an “other status” within the meaning of

Article 14 of the Convention

. Is the defendant’s status analogous to that of another person who has been treated differently

[66]In case I am wrong in my conclusion as to the defendant’s status, I go on to consider the further questions.

[67]As I have said, the Defence pleads discrimination on the basis that section 13 removes the security of tenure provisions in the 1977 Act because the defendant was a government tenant. As Mr Grundy KC says, the pleading is not as clear as it could be for the purposes of the present stage in the analysis, but it seems to me that on this basis, the relevant other person must be a tenant of a private landlord (to whom the 1977 Act would have applied). In Larkos, the ECtHR dealt with this issue in the following way:

“30. The Court must have close regard to the terms of the tenancy agreement which Mr Larkos concluded with the authorities when assessing his claim to be in a relevantly similar or analogous situation to that of private tenants renting property from private landlords. It notes in this regard that the lease makes no reference to the fact that the property was let to him in his capacity of civil servant or that the subsistence of the lease was dependent on his continued employment in the civil service. Although the lease contained a provision on the applicant’s transfer from the district in which the house was situated (see paragraph 6 above), this clause was introduced to protect his own rather that the State’s interests in that eventuality. Moreover, the lease is silent on the consequences resulting from the applicant’s retirement or resignation from the civil service. Nor would it appear that the rent to be paid by the applicant was fixed at a preferential rate on account of his status. Indeed the Government have not sought to argue in their pleadings that Mr Larkos’s rent was less than the market rate or that the tenancy agreement was anything other than a typical landlord and tenant agreement. Having regard to these considerations and in particular to the fact that the terms of the lease indicate clearly that the State rented the property in a private-law capacity, the Court considers that Mr Larkos can claim with justification to be in a relevantly similar situation to that of other private tenants who rent accommodation from private landlords and whose property is situated in a regulated area within the meaning of the Rent Control Law 1983.”

[68]It seems to me that the defendant’s position is different from the position of Mr Larkos.

[69]At the time that the defendant signed the tenancy agreement he had been working for the hospital for some time. His evidence was that he was only granted the tenancy because of his employment and that at that time he knew that the continuation of the tenancy depended in part on the continuation of that employment. There were reasons to treat some of Ms Lee (who gave evidence for the claimant)’s evidence with care, however I accept as credible the claimant’s evidence that, at least at the time the tenancy was granted, it was considered important to the running of a hospital such as Broadmoor, that nursing staff were housed nearby in case of need. Although Mr Young argues that the tenancy would not qualify as a service tenancy within the meaning of the 1977 Act (an issue I do not need to decide), the tenancy agreement is signed by the hospital administrator and is described as a service tenancy. The utilities for the property are provided by the hospital. While he remained a full-time employee, the defendant’s rent and utility charges were deducted from his wages. The evidence of the rent increase letters show that there were long periods when the defendant’s rent was not subject to increase by reference to independent valuations. The defendant accepted that individual items on his utility bill were reasonable and that his total utility bill (at least after the errors relating to the method of dividing liabilities with a neighbouring property had been corrected) was a low price.

[70]It seems to me to follow from these features of the tenancy that the defendant was not in an analogous position to the tenant of a private landlord. He had been: granted a tenancy by his employer; on his employer’s site; at least partly for the employer’s operational convenience; on advantageous terms; and on the understanding that if the defendant’s employment came to an end so might the tenancy. Justification

[71]Mr Young did not argue that Mr Grundy KC was wrong that the test at this stage would be whether the immunity is “manifestly without reasonable foundation” as described by Lewison LJ in Simawi at paragraphs 55 to 65 and by the ECtHR in James. It seems to me that Mr Grundy KC’s submission is correct. The policy choices involved in deciding the terms on which public hospital owned housing is rented to employees or others, or in deciding how to deal with existing tenancies in circumstances such as were created by the 1990 Act, are analogous to those involved in the choices considered in those cases.

[72]As I have explained, the Secretary of State did not intervene in the proceedings and there is very little material going to the issue of justification for the statutory provisions in the bundles.

[73]I am prepared to accept Mr Grundy KC’s submission that the purpose of the exemption in section 13 of the 1977 Act was to facilitate the management of state assets and as it applied to the Broadmoor estate, to facilitate the housing of key workers. The purpose of facilitating the management of state assets has been accepted in other cases as a basis for exemptions from housing law protections. At the time the defendant’s tenancy was granted, the substantial housing stock then attached to the Broadmoor estate was at least largely used to house hospital staff. I have already accepted the credibility of the evidence that there would be good operational reasons why that hospital would wish to house at least some staff on site. I accept that those purposes were reasonable.

[74]It does not seem to me that Mr Young’s submissions undermine the existence of those purposes. The fact that the immunity was removed for many tenancies created after 1st April 1991 when the NHS Trust regime came in, does not mean that this purpose could not and did not exist before that when the estate was owned by the state. In any event, as Mr Grundy KC pointed out and Mr Young in the event accepted, the regime under the 1988 Act (including its amendment by paragraph 10 of Schedule 8 of the 1990 Act) achieved a measure of relevant flexibility for post 1st April 1991 granted tenancies. The fact that the 1977 Act provides a mechanism for recovery of possession and a measure of rent control does not undermine the existence of those purposes either. The defendant would not have defended these proceedings on the grounds he did if the exemption from the 1977 Act did not provide the claimant and its predecessors with considerably more flexibility than if the 1977 Act applied. The fact that there are very few tenancies that now fall within section 13 does not assist in deciding what the original statutory purpose was. Finally, the fact that the SHSA decided to sell the majority of the properties to tenants and the TVHA after the 1990 Act came into force does not undermine the existence of the prior purposes. Under the new regime created by the 1990 Act, such decisions were to be taken by bodies corporate rather than the state. It was a matter for them to decide what those decisions would be. I note in this respect that in the staff housing paper of 2nd December 1991, it was envisaged that as part of the agreement to transfer property to the TVHA, some rented property would be made available to each hospital for new recruits. Again, whatever criticisms can be made of Ms Lee’s evidence, I accept that the claimant continues to provide some accommodation on site for its employees.

[75]It does not seem to me that any of Mr Young’s arguments establish that the exemption in section 13 of the 1977 Act was manifestly without reasonable foundation.

[76]As I have said, the case is brought as a challenge to section 13 but it seems to me that any attack on paragraph 19 (2)(b) of Schedule 8 of the 1990 Act would also fail on the grounds of justification.

[77]As set out above, Mr Young accepts that at least one purpose of that provision was to give flexibility to the new NHS bodies in relation to tenancy agreements they had not themselves entered into. The 2nd December 1991 paper is consistent with the existence of that purpose. It appears to set out a comprehensive plan for dealing with the property portfolio the SHSA had become responsible for, which the SHSA had itself determined. It covers new rental agreements, provision for those who did not want to accept new rental agreements, the scheme for staff to buy properties and the proposal to transfer the remainder to the TVHA (with the provision for continuing availability to the hospital I have referred to above). It seems to me to be entirely reasonable for the state, when transferring property to another body for public purposes, to preserve the terms on which any existing tenancies were granted and to leave it to the new body to decide what, if any, changes it wishes to make. Although the defendant criticises the fact that his property was not in the event included either in the group of properties that were offered to tenants for purchase or in the tranche sold to the TVHA, he does not advance a reason why the aim, which he accepts existed, of giving flexibility to the new hospital bodies, was manifestly without reasonable foundation. Sections 3 and 4 of the 1998 Act

[78]Given my conclusions on the issue of breach of

Article 14 of the Convention

it is not necessary to go on and consider sections 3 and 4 of the 1998 Act.

[79]However, even if I had been satisfied that section 13 of the 1977 Act breached Article 14 in its impact on the defendant, I would not have been prepared to accept Mr Young’s submissions in relation to section 3 of the 1998 Act.

[80]As Mr Young frankly accepted, both of his proposals for reading and giving effect to section 13 involved disapplying a clear statutory provision. His primary position involved disapplying section 13 itself. His fall-back position involved disapplying paragraph 19 (2)(b) of Schedule 8 of the 1990 Act. I accept that a court is given a degree of latitude when applying section 3, but: “94…while this section gives the court a powerful tool with which to interpret legislation, it does not enable a court to change the substance of a provision from one where it says one thing into one that says the opposite; or…to “adopt a meaning inconsistent with a fundamental feature of the legislation”…” (Mercer at paragraph 94)

[81]Mr Young’s submission that in Cachia v. Faluyi

[2001] 1 WLR 1966

the Court of Appeal read the relevant statutory provision “down to nothing”, is not correct. What happened in Cachia was that Brooke LJ interpreted “action” in section 2 (3) of the Fatal Accidents Act 1976 as meaning “served process” (see paragraph 20 of the judgment). The court said that that went beyond what was permitted by conventional rules of statutory interpretation. However, it did not constitute reading a statutory provision “down to nothing”.

[82]There is no basis for making a declaration of incompatibility in this case. However, even if there were, that would not have prevented me making the possession order sought. Such a declaration “…does not affect the validity, continuing operation, or enforcement of the legislation it concerns…”: section 3 (2)(b) 1998 Act and Mercer at paragraph 113. Issue (b) If the tenancy does attract the protections in the 1977 Act, is it reasonable to make a possession order within the meaning of section 98 of the 1977 Act read with Cases 1 or 8 of Schedule 15 of that Act

[83]In the light of my conclusion on issue (a), these issues do not arise.

(i) The law

[84]As the defendant has not challenged the validity of the Notice to Quit on any other grounds, the starting point is that his right to occupation of the property has ended.

[85]In Manchester City Council v. Pinnock

[2011] 2 AC 104

, the Supreme Court held that in such circumstances, a person at risk of dispossession must have the right to raise the question as to the proportionality of making a possession order, under

Article 8 of the Convention

[86]However, the Court went on to give guidance as to the proper approach to the proportionality question in such circumstances. It said:

“51. It is necessary to address the proposition that it will only be in “very highly exceptional cases” that it will be appropriate for the court to consider a proportionality argument. Such a proposition undoubtedly derives support from the views expressed by Lord Bingham, and has been referred to with apparent approval by the European court in more than one case… 52. We would prefer to express the position slightly differently. The question is always whether the eviction is a proportionate means of achieving a legitimate aim. Where a person has no right in domestic law to remain in occupation of his home, the proportionality of making an order for possession at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authority's ownership rights. It will also, at least normally, be supported by the fact that it would enable the authority to comply with its duties in relation to the distribution and management of its housing stock, including, for example, the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs, and the need to move vulnerable people into sheltered or warden-assisted housing… 53. In this connection, it is right to refer to a point raised by the Secretary of State. He submitted that a local authority's aim in wanting possession should be a “given”, which does not have to be explained or justified in court, so that the court will only be concerned with the occupiers' personal circumstances. In our view, there is indeed force in the point, which finds support in Lord Bingham's comment in Kay v Lambeth London Borough Council [2006] 2 AC 465 , 491, para 29, that to require the local authority routinely, from the outset, to plead and prove that the possession order sought is justified would, in the overwhelming majority of cases, be burdensome and futile. In other words, the fact that the authority is entitled to possession and should, in the absence of cogent evidence to the contrary, be assumed to be acting in accordance with its duties, will be a strong factor in support of the proportionality of making an order for possession. But, in a particular case, the authority may have what it believes to be particularly strong or unusual reasons for wanting possession—for example, that the property is the only occupied part of a site intended for immediate development for community housing. The authority could rely on that factor, but would have to plead it and adduce evidence to support it. 54. Unencumbered property rights, even where they are enjoyed by a public body such as a local authority, are of real weight when it comes to proportionality. So, too, is the right—indeed the obligation—of a local authority to decide who should occupy its residential property… Therefore, in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way. Second issue: the application of this conclusion in general 55. The conclusion that, before making an order for possession, the court must be able to decide not only that the order would be justified under domestic law, but also that it would be proportionate under article 8(2) to make the order, presents no difficulties of principle or practice in relation to secure tenancies. As explained above, no order for possession can be made against a secure tenant unless, inter alia, it is reasonable to make the order. Any factor which has to be taken into account, or any dispute of fact which has to be resolved, for the purpose of assessing proportionality under article 8(2) , would have to be taken into account or resolved for the purpose of assessing reasonableness under section 84 of the 1985 Act…. 57. The implications of article 8 being potentially in play are much more significant where a local authority is seeking possession of a person's home in circumstances in which domestic law imposes no requirement of reasonableness and gives an unqualified right to an order for possession. In such a case the court's obligation under article 8(2), to consider the proportionality of making the order sought, does represent a potential new obstacle to the making of an order for possession. The wide implications of this obligation will have to be worked out. As in many situations, that is best left to the good sense and experience of judges sitting in the county court. … 62. Fourthly, if domestic law justifies an outright order for possession, the effect of article 8 may, albeit in exceptional cases, justify (in ascending order of effect) granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether.”

Second issue: the application of this conclusion in general

[87]In Hounslow London Borough Council v. Powell [2011] Lord Hope said:

“35. Mr Luba accepted that the threshold for raising an arguable case on proportionality was a high one which would succeed in only a small proportion of cases. I think that he was right to do so: see also Pinnock [2011] 2 AC 104 , para 54. Practical considerations indicate that it would be demanding far too much of the judge in the county court, faced with a heavy list of individual cases, to require him to weigh up the personal circumstances of each individual occupier against the landlord's public responsibilities... in the great majority of cases the court can and should proceed on the basis that the landlord has sound management reasons for seeking a possession order.”

[88]In Thurrock Borough Council v. West

[2012] EWCA Civ 1435

at paragraph 29, Etherton LJ said “…an Article 8 defence on the grounds of lack of proportionality must be pleaded and sufficiently particularised to show that it raises the high threshold of being seriously arguable.”.

[89]R (JL) v. Secretary of State for Defence

[2013] EWCA Civ 449

concerned a claim for possession by the Ministry of Defence of service accommodation let to the family of a former soldier. The family had been permitted to remain in occupation on compassionate grounds. There came a point at which the MoD sought possession and sought to justify the decision on the grounds that it was vindicating its property rights and complying with its duty efficiently to manage service properties (including to accommodate service families). There was a good deal of evidence as to the particular needs and difficulties of the claimant’s daughter who lived at the premises. In upholding the Article 8 analysis by the trial judge, the Court of Appeal approved her taking into account the fact that the statutory duty to provide accommodation for the needs of the family fell on the council and not the Ministry of Defence. (ii) The arguments The defendant

[90]The Defence says on the one hand that there were no grounds known to the defendant which would make the taking of possession necessary. It says that a possession order would be disproportionate because the defendant occupies the property with his wife and family, has done since 1988 and is willing to pay rent and other charges lawfully due.

[91]In his skeleton argument, Mr Young relied on the same grounds that he relied on for saying that the reasonableness requirement in section 98 of the 1977 Act was not satisfied. These were: the defendant is 72 and his wife is of a similar age; he has had a minor stroke and suffers high blood pressure, she has lost a kidney to cancer which has been successfully treated (although the only medical evidence is in two letters from nurses); the property has been their family home since 1988; they are of modest means and have funded their legal costs from savings (the schedule of assets shows assets in the total amount of around £ 103,000 and monthly income (including an NHS pension for both the claimant and his wife) of £ 5,332.32, although it is silent about the position of his daughter who also lives in the house); there is no prospect of them obtaining a mortgage; prospects of re-housing by the local authority are uncertain; they were long standing employees of the hospital all their working lives; but for the fact that the property is not connected to the mains for utilities, they would have had the right to buy the house in the 1990s; there is a dearth of evidence from the claimant as to its need for the house; the claimant has considerably greater resources than the defendant; the claimant left it until 2024 to terminate the tenancy; and the claimant has not assisted the defendant to find alternative accommodation.

[92]When pressed in the course of his oral submissions as to whether he was submitting that there could never come a point at which the claimant could evict the defendant, Mr Young put his case this way. He said that both the defendant and his wife were long standing employees and the claimant needed to come up with a justification for turning them out. He said that if the claimant could demonstrate that it had a specific person (for example a doctor, a nurse or a security officer) that needed to be on the site and the claimant had nowhere else to put them, then the defendant would have to leave. He described it as partly an evidential point. Mr Young said that the claimant had not done this. The claimant

[93]The claimant’s argument is straightforward. It is that the threshold set out in the cases is a high one and having regard to that threshold, the defendant’s Article 8 argument is “hopeless”. Mr Grundy KC pointed to the fact that the claimant’s functions are not as a public housing provider but as a hospital. He said that the defendant’s income and savings are more than sufficient for him to find alternative accommodation. He relied on the fact that the claimant needs the property for its current employees and on the fact that the defendant cannot have expected to occupy the property for the rest of his life. Furthermore, the defendant had been provided with accommodation at substantially below market rent since 2001. (iii) Discussion

[94]A significant proportion of Mr Young’s cross-examination was directed to trying to undermine the claimant’s case that it needed the property in order to house current staff. This was consistent with the point that he reached at the end of his submissions, that if the claimant established this, Article 8 would be satisfied. The implication in Mr Young’s approach is that it is for the claimant to establish by sufficiently cogent evidence that it has a particular need for the property before a possession order can be made compliant with Article 8.

[95]However, it seems to me that that approach is inconsistent with the approach required by the above cases. In particular, paragraphs 53 and 54 of Pinnock, extracted above. The claimant is the property owner which wishes to vindicate its property rights. It is a hospital, not a social housing provider. The starting point is that it is for it to decide how it wishes to use its own property, including how those uses relate to its public functions. It has said that it wishes to use the property for other purposes and has said one of those purposes is the housing of its employees (just as it had with the defendant). In those circumstances, it is for the defendant to plead and establish the existence of particular facts which reach the high threshold that is required in order for him to succeed in arguing that the possession order in his case would nevertheless be disproportionate.

[96]As it happens, I do accept the claimant’s evidence that it needs the property to house employees. I have already referred to the evidence of Ms Lee but I see no reason to disbelieve her evidence that the claimant now has a limited number of properties that it can use for this purpose. I also see no reason to disbelieve her evidence that all relevant properties are occupied and there is a waiting list for staff wanting employee accommodation. The extract from the report to be presented by the Head of Estates and Facilities at the High Secure Senior Management Team meeting on 26th February 2026 that is in the bundle reads:

“7 Staff Accommodation All accommodation is fully occupied with a waiting list of 4 staff.”

I do not think that the claimant needs to go further. The detailed analysis by Mr Young of the reasons why the house at 29 Eastern Lane was retained by the claimant’s predecessor in title rather than being sold to a tenant or the TVHA does not seem to me to undermine this evidence. All accommodation is fully occupied with a waiting list of 4 staff.”

[97]The defendant does not seem to me to have come close to establishing that his case surmounts the threshold that the cases require.

[98]I understand and sympathise with the situation that the defendant finds himself in and I was impressed by the honest and straightforward way in which he gave his evidence. I also understand his disappointment that his house was not included in the schemes that would have enabled him to become an owner of it. However, the fact is that, ever since he first entered into his tenancy agreement, he has known that his occupation was as a result of his employment at Broadmoor. He and his wife have a reasonably comfortable guaranteed retirement income and some solid savings. They also appear to be in reasonably good health. It does not appear from his evidence that the defendant has done much to explore the options that he has for alternative accommodation, however, there is nothing in the evidence that would support an argument that he would be unable to find such accommodation. In those circumstances there does not seem to me to be anything in the defendant’s situation other than his attachment to the house that he has spent so long living in which he could use to justify his resistance to the order for possession (indeed that is essentially all that he has pleaded). Unfortunately, that is not a reason that can form the basis for a disproportionality argument under Article 8 in the current proceedings.

[99]At the end of his submissions, Mr Young sought to argue that I could suspend any order for possession or impose some conditions on it. He drew my attention to paragraph 62 of Pinnock in support of that submission. I do not think it would be appropriate to take these courses in this case. Paragraph 62 of Pinnock refers to “exceptional cases” where this might be done. For the reasons I have given, this is not an exceptional case.

[100]However, as I pointed out in the course of submissions and as Mr Grundy KC was quick to accept, Ms Lee was clear in her evidence that she would not seek to enforce any possession order in a way that did not take into account the defendant’s circumstances. She repeatedly relied on the fact that “we are human beings”. There was also some material that suggested that Ms Lee has said in the past that she would give the defendant such assistance as she could in finding new accommodation. While I accept that there are limits to the claimant’s obligations in these respects, I would expect that Ms Lee having given this evidence and these assurances the claimant will act consistently with them. (d) Whether the defendant’s rent was validly increased to £ 950 and therefore whether he is liable for unpaid rent since 1st June 2021

[101]This is a narrow issue, which became even narrower in the course of Mr Young’s submissions. As set out above, the rent review clause in the tenancy agreement provides: “PROVIDED ALWAYS AND IT IS HEREBY AGREED that the monthly rent payable by the tenant as from the first day of JUNE of the second and every subsequent year of the demise hereby granted shall be such sum as shall be assessed by the Secretary of State by his duly authorised agent the Hospital Administrator for the time being aforesaid and notified to the tenant in writing.

[102]The letter from the claimant dated 23rd September 2010, increasing his rent to £ 750 per month, stated that the increase was in accordance with the District Valuation recommendations and attached a District Valuer’s report. The letter was from the claimant’s Operations Manager for Logistics and Environment. As I have said, the defendant has paid this monthly rent ever since.

[103]The correspondence dealing with the increases in 2020 and 2021 was signed by the claimant’s Compliance Contracts & Performance Manager who was said to be part of the Estates and Facilities Department. The initial letter of 7th April 2020 proposing the three step increase, again said that a District Valuer had carried out a review. It went on to say that the resulting recommendation was taken to High Secure Services Senior Management Team who supported the proposal. The letter of 18th May 2021, setting the rent at £ 950 per month on the basis that the disputes which delayed the increase had been resolved, said that:

“After further consideration the rental charges advised by the District Valuer and the increased rental charges outlined in the letter dated 30th April 2020 will not be enacted. The revised rent, effective from 1st June 2021, is £ 950.”

[104]In his skeleton argument, Mr Young argued that what was required by the rent review clause was an assessment by the Hospital Administrator. He said that there was no evidence as to how the relevant rent increases were assessed by a person in the post of Hospital Administrator. As regards the 7th April 2021 letter, Mr Young said that how the High Secure Services Senior Management Team stood vis a vis the “Hospital Administrator” was obscure on the evidence.

[105]In oral submissions, however, Mr Young accepted that the Hospital Administrator did not have to do everything themselves. He accepted that there could be delegation. He said the problem was that the defendant had not been told who the Hospital Administrator had delegated the task to. This, he said, was necessary because the clause envisaged that the Hospital Administrator needed to put their imprimatur on the increase so that a person of requisite seniority was fixing it. He again complained that there was no evidence as to where the High Secure Services Senior Management Team stood in relation to the Hospital Administrator.

[106]Once Mr Young accepted that the Hospital Administrator could validly delegate the tasks under the rent review clause, the only question for the purposes of his argument is whether the person who set the rent at £ 950 had been validly delegated to carry out those tasks. In the context of a large organisation such as the claimant there is unlikely to be a formal personal delegation. The question is which section of the hospital administration is tasked with the responsiblity for the management of the claimant’s properties. It does not seem to me to be credible to argue that the Estates and Facilities Department is not that section, if appropriate, having reported to what it regards as its senior management.

[107]The letter dated 18th May 2021 which said the claimant was increasing the defendant’s rent to £ 950 per month, was signed by the Compliance Contracts & Performance Manager in the Estates and Facilities Department. She said that the decision had been taken after further consideration of the advice by the District Valuer. At least in the absence of any reason to go behind what is set out in the face of that letter, it seems to me that therefore the requirements of the rent review clause were complied with for the purposes of that increase.

[108]It follows that the defendant is liable to pay the claimant the short-fall in the rent for the period up to the termination of the tenancy. The defendant accepts that it would follow from that conclusion that he is liable for the same monthly amount by way of mesne profits for the period afterwards.

[109]I should add that Mr Young sought to add a pleading point to his argument under this heading. He sought to say that the prayer at the end of the Particulars of Claim should be read as not applying to the claimant’s case as it was advanced if the claimant succeeded on the Article 14 point. I do not see any reason why the Particulars of Claim should be read in that way. They set out the whole of the claimant’s case and then they add a prayer at the end. I see no reason why the prayer should not follow from the whole of the case. In any event, the defendant was not taken by surprise in relation to this claim and he has fully argued the point so there is no relevant prejudice to him in permitting it to continue. (e) Whether the defendant has any defence to the claim for immediate payment of the outstanding utilities charges.

[110]As I have said, the defendant accepted when giving evidence that he is liable to pay the invoices he has received and has not paid (this seems to accord with a letter from the defendant to the claimant dated 12th November 2015 in which he says he is holding the money for utilities in an account). Mr Grundy KC accepted that in these proceedings the claimant could only recover for invoices issued within six years of the issue of the Claim Form. The question I have to decide, is whether there is a basis on which the claimant’s claim for these amounts should nevertheless fail.

[111]This part of the claim was originally defended on three broad grounds. First, the tenancy agreement did not create an obligation to pay utilities charges; secondly, the claimant had not set out sufficiently the basis for the amounts that were invoiced; and thirdly, there had been an agreement between the claimant and defendant that he would not have to pay his utilities invoices until his complaints relating to the sceptic tank for the property had been fixed.

[112]As regards the first ground, the relevant clauses of the tenancy agreement are set out above. I repeat, the agreement creates obligations: (b) To pay all existing and future rates or contributions in lieu of rates and taxes and other outgoings imposed or charged upon the premises or upon the owner or occupier in respect thereof. … (j) To defray all costs of heating and lighting the premises. …

[113]I do not see why utilities provided and invoiced by the landlord are not “other outgoings imposed or charged upon the premises or upon the owner or occupier..”. That seems to me to be the natural reading of the words in their context (see, generally, Arnold v. Britton

[2015] UKSC 36

at paragraph 15). In addition, of course, some of the utilities will also be costs of heating and lighting within the meaning of sub-clause (j). My conclusion in this respect is supported by the defendant’s own view of his obligations, to which I have already referred.

[114]As to the second ground, the evidence of Mr Brown for the claimant was that in the relevant period a detailed breakdown of the units of each utility, including water, the unit cost and the total used was provided to the defendant for each invoice. The defendant was taken through examples of these when being cross-examined. As I have said he accepted that the charges in the relevant period were reasonable and that at least one overall bill was low. It seems to me that the claimant has established that the charges he claims for have been validly invoiced and proved.

[115]A significant proportion of the evidence was directed to the third ground. I accept that there was an agreement between the defendant and the claimant that while the utility bills remained payable, the defendant need not actually pay until the septic tank issues were resolved.

[116]I do not have to resolve the issue as to whether that agreement was binding. The defendant accepted that it was possibly an agreement to agree (agreements to agree are generally not binding in English law) and the claimant said that it was neither sufficiently certain to be binding nor supported by consideration. I also do not need to resolve the dispute as to whether the issues with the septic tank were in fact fully resolved (I do not think that I have the evidence which would enable me to resolve this dispute in any event).

[117]Whatever the answer to these questions, the agreement described to me was essentially one that permitted the defendant to withhold payment until the claimant had complied with an obligation to repair the property. That is to say, a mechanism to ensure that the septic tank issues were resolved by the defendant’s landlord. However, now that the tenancy has come to an end, the claimant does not have any obligations to the defendant to ensure that the premises are in good repair. There is therefore no obligation to ensure the enforcement of which the money can be withheld under the agreement. It follows that once it is accepted that there is a liability to pay, judgment for the claimant for the relevant utilities follows.

[118]I add that there was some evidence relating to a possible reimbursement for over charging pre-2014 and also for compensation for the inconvenience caused by the septic tank problems. These appear not to have got beyond the negotiation phase. However as there is no counter-claim relating to these matters, I do not need to consider them further. Conclusion

[119]The tenancy agreement is not a protected tenancy within the meaning of the 1977 Act. It has been lawfully terminated and the claimant is entitled to an order for possession of the property. The defendant must pay the arrears of rent, mesne profits and utility charges in so far as the relevant liabilities arose within six years of the issue of the Claim Form. END