In Wragg v Surrey County Council ([2008] EWCA Civ. 19, CA (Eng)) W was a countryside ranger employed by the Council to carry out duties relating to the management and conservation of areas of common land in Surrey. His employment contract required him to live in a house provided by the council and declared that this was for the better performance of his duties. W sought to exercise the right to buy under the Housing Act 1985. Whether he could do so or not depended on whether the arrangement fell within an exception that applied to tenancies where the tenant’s contract of employment required him to occupy the dwelling-house for the better performance of his duties.
On its face, the contract clearly did fall within the exception but the English Court of Appeal held that one had to look at the substance and not merely the terminology employed. Although the judgment arises in a particular statutory setting, it gives guidance on the meaning of ‘for the better performance of his duties’ that is rooted in more general authorities and helps to explain those authorities.
The phrase, ‘for the better performance of his duties’ invites a consideration of the parties’ intentions when including the express term in the contract. The intention is an objective intention: there is a need for a real, objective link between the requirement and the better performance of the duties ([40] per Richards L.J).
‘Better’ does not mean ‘efficient’. It is a true comparative. The question is whether the inclusion of the term rests on a reasonable judgment that performance of the duties would be materially assisted by the occupation (better with the occupation than without it) ([48] per Richards L.J.). Richards L.J. gives guidance on relevant considerations at [46]. The test is not necessity: the fact that the duties can still be performed without the occupation does not settle the matter.
The arrangement was for the better performance of the ranger’s duties and so fell within the exception ([55]).
