New websites 1
The OPSI and Statute Law Database sites have been combined into one new site for statute: www.legislation.gov.uk. However, the databases are the same and the current estimate is that about 50% of the statute is up to date, in the sense of containing all subsequent amendments. While statutes that have subsequent unincorporated amendments are marked as such, as per the SLD, this remains unsatisfactory for anyone who needs current statute – which is anyone in practice – as noted in the whole Timothy Leigh/iLegal kerfuffle. We don’t link to the SLD and now legislation.gov.uk versions of the key housing statutes for that reason, but there is no doubt that legislation.gov.uk will continue to build into a valuable resource, assuing its funind isn’t removed entirely.

New websites 2
Housing Rights Service – the leading provider of specialist independent housing advice, training and information in Northern Ireland – contacted me about their new site and blog. Because I’m a dimwit, I didn’t know who they were. Thankfully I was quickly put right by others on the NL team before I could (further) embarrass myself. A link to the HRS website is now in the ‘housing law’ links to the right. The blog looks like an interesting start on setting out the HRS findings from their Preventing Possession initiative (spanning mortgage and rent arrears).

‘Cameron Tenancies’
On the floated proposals for council tenancies to be of 5 to 10 years, then reviewable on a ‘means and occupation’ basis, the Lib Dems are uneasy. Simon Hughes has come out against the proposals. Whether this will make any difference will have to be seen. And the Sunday Times reported a poll finding 62% of the voting population is vaguely or strongly in favour of the proposals. Given that the Guardian couldn’t even get the relevant housing law right in its front page, I really doubt that those 62% are basing their decisions on a sound knowledge of how secure tenancies actually work now. What proportion of the 62% actually have secure tenancies was not something that the Sunday Times cared to inform us. No link to the story because of Rupert Murdoch’s paywall on Times websites.

Legal Aid contract round
In an email sent out on Friday 6 August, the Law Society stated that it had sent a letter to Carolyn Downs, new LSC head, requesting that “the implementation of the tender round be suspended ‘pending an urgent but thorough and public evaluation of the result to ensure that access to justice is achieved’.” The letter is here [link to PDF]. The Law Society’s view, based on the Family tender results and the LSC’s previous statements that a reduction in supplier base was not an intended outcome of the process, is that “It is clear that the LSC is not in control of the tender process.”. Various voices, including that of Wall LJ, President of the Family Division, have been raised against the outcome of the Family contract process. There is more of a silence over the Social Welfare results.

Meanwhile, according to the Law Gazette, Ms Downs, having just entered the post of LSC chief, is apparently startled at the nature of relations between the LSC and providers, ‘where it would appear to be acceptable for people to talk to each other in a really rather adversarial, aggressive and inappropriate fashion’.

She said providers and the LSC needed to ‘engage more constructively and more openly’, but added ‘it is very difficult to have open and engaged discussions with people who are constantly threatening to sue you’.

As the comments on the Law Gazette story point out, threatening to sue was hardly a first resort at any point, particularly for the Law Society and no-one has seen any fresh tendency to constructive and open engagement yet from the LSC. Ms Downs may have quite a steep learning curve on the recent history of the LSC – provider relationship to master.

Imagine, if you will, that, in 1967, Mr Steven Wall was placed with Mrs June Wall, who acted as his foster parent, by Sheffield CC. Whilst Steven was never adopted, he was clearly treated as the son of Mrs Wall and there was no-one else that could be said to have fulfilled that role.

In October 1986, Sheffield CC granted Mrs Wall a secure tenancy of a two-bed house, to be occupied by her and her “son”, Steven. He duly qualified as a solicitor and, after a short spell living and working in London, he returned to Sheffield in June 2002, to live with his mother. Sadly, 51 weeks after moving back home, his mother died of cancer. During those 51 weeks, Steven had cared for his mother. The council served NTQ and issued possession proceedings, contending that there was no-one entitled to succeed to the tenancy. Steven resisted the proceedings, arguing that he had succeeded.

In the county court, two issues arose. Firstly, was Steven a “member of the family” for the purposes of ss.87 and 113, Housing Act 1985. Perhaps surprisingly, foster children are not expressly within the scope of these sections. However, the Recorder dealt with this by finding that Sheffield were now estopped from arguing that Mr Wall was not a member of the family.

The second issue was more common – had Mr Wall resided with his mother for the period of 12 months ending with her death? The Recorder found against Mr Wall on this point.

Mr Wall successfully appealed to the Court of Appeal ([2006] EWCA Civ 495), which didn’t deal with the first issue, but criticised the approach taken by the Recorder to the second issue. The case was remitted for re-hearing.

However, Mr Wall hadn’t sought a stay of execution pending the appeal and, in early 2005 (prior to the appeal), the possession order was executed. The property was then re-let under a new secure tenancy to Mr & Mrs Ingham.

At the restored hearing, Sheffield accepted that Mr Wall had resided at the property for the relevant period. Their claim for possession was dismissed. That, however, was of very limited use to Mr Wall, since Mr & Mrs Ingham were now living at the property. He joined them and sought an order for possession as against them. That claim was also dismissed.

And, so, the mess ended up in the Court of Appeal. Again.

The first matter to consider was the potential succession rights of Mr Wall, or, more shortly, was he a “member of the family” for the purposes of ss.87 and 113, 1985 Act?

The Court was satisfied that, under the Rent Acts, he would have been. Brock v Wollams [1949] 2 KB 388 and, more recently, Fitzpatrick v Stirling HA Ltd [2001] 1 AC 27 were clear authority for the generous approach to be taken when construing that phrase. Context was, however, everything. In the context of the 1985 Act – unlike the Rent Acts – the statute itself defined the scope of “member of the family”. That definition was in s.113, 185 Act and, as already noted, does not refer to foster children. Section 113 was a complete code and Mr Wall did not come within it.

His only recourse was to rely on Art. 8, Sch. 1, Human Rights Act 1998. His Art. 8 rights were clearly “engaged”, but Parliament was clearly entitled to come to the view that only certain persons should be entitled to succeed, such that any violation of Art. 8(1) was justified under Art. 8(2).

So, the appeal failed at this stage. Mr Wall was not – and had never been – entitled to succeed to the tenancy. You may think that this is a rather harsh result, rather unpersuasively reasoned and one that – if right – really should have been dealt with in the 2006 appeal. That, however, is entirely a matter for you.

The court could, and perhaps, should, have stopped there. However, it went on to consider – without deciding – what would have happened if Mr Wall has succeeded.

Firstly, it was clear that the tenancy of his mother would have vested in him immediately. Secondly, the previously decided cases (Brent v Botu [2001] HLR 14; Hillgate House Ltd v Expert Clothing Services [1987] 1 EGLR 65) did not purport to set down any general rule, the answer had to come from the 1985 Act itself; in that regard, when Mr & Mrs Ingram went into possession, it appears that Mr Wall would have ceased to satisfy the tenant condition (s.81, 1985 Act), such that he lost his security of tenure and would be liable to eviction at the suit of Mr & Mrs Ingram, after service of an NTQ. A suggestion to the contrary in Osei-Bonsu v Wandsworth LBC [1999] 1 WLR 1011 was per incuriam.

However, the point did not arise in the present case and was not decided. A further point on costs was also dealt with, but need not concern us here.

Since the beginning of replacement tenancies on May 2009, there have, rather surprisingly, not been any reports on cases involving the Housing and Regeneration Act 2008 Schedule 11 s.21 – when the new tenancy and the original tenancy are to be treated as the same and continuous for the purposes of a relevant claim (for breach of tenancy condition or statutory duty). Now, we’ve heard about one such case.

For an ex-tolerated trespasser with, say, a disrepair claim extending back over the period prior to May 2009, there appear to be two routes to recovering tenancy for the whole period since the possession order and with it the right to claim for breach of condition of tenancy. One is to make a s.85 Housing Act 1985 application to postpone possession or for discharge within the original possession proceedings; the other is to apply within issued disrepair proceedings for an order that the replacement tenancy to be treated as the same tenancy and continuous under s.21(3) Schedule 11 HRA 2008. Of the two, the s.85 application has other benefits for the tenant, for example by altering a previous possession order so that the landlord can’t issue a warrant without notice.

However, there are always complications. In LB Lewisham -v- Litchmore, there was a disrepair counterclaim to a fresh possession claim by Lewisham on the replacement tenancy, but the Defendant had been a tolerated trespasser for some years before the replacement tenancy began in May 2009, as the result of a previous possession order. The disrepair counterclaim was limited by the lengthy period of tolerated trespasser-hood. An application for an order under s.21(3) was made by the Defendant for the replacement tenancy to be treated as the same and continuous. Lewisham opposed the application.

The Court made the Order that the replacement tenancy be deemed the same tenancy and continuous from the date of possession in the original order, so that the counterclaim could include the full period of alleged disrepair. Lewisham were granted permission to appeal.

Interesting to see that a Court is prepared to exercise the s.21 discretion. S.21(3) states:

In proceedings on a relevant claim the court concerned may order that the new tenancy and the original tenancy are to be treated for the purposes of the claim as—
(a) the same tenancy, and
(b) a tenancy which continued uninterrupted throughout the termination period.

Will this discretion be effectively the same as that exercised under s.85 Housing Act 1985?

We’ll keep our ears open for news of Lewisham’s appeal.

[Thanks to Charlotte Collins at Anthony Gold.]

Ms Webb was (and, as far as I know, still is) the secure tenant of the London Borough of Wandsworth. One of her children had been engaging in serious anti-social behaviour in and around Ms Webb’s home. By the time of trial, he was no longer residing with Ms Webb although he was not living very far away and would return to visit Ms Webb. At the date of trial it appeared that there had not been any ASB for about a year. The high point of the case for the local authority was that the son had been arrested (but not convicted) on three occasions for breach of an ASBO.

It was common ground that Grounds 1 and 2 were made out, but Ms Webb contended that it was not reasonable to make an order. Wandsworth argued that it was reasonable to make an order, but that it should be postponed on terms.

The Circuit Judge made a PPO, with terms requiring inter alia, the son not to reside at the property and Ms Webb appealed to the Court of Appeal.

Ms Webb raised the following grounds of challenge:

(a) There was very little behaviour that Ms Webb was personally culpable for. Wilson LJ, giving the main judgment, accepted that this was a relevant factor but, following Bryant v Portsmouth CC [2000] 32 HLR 906, there was nothing objectionable in requiring Ms Webb to take responsibility for the behaviour of her household. In addition, following Manchester CC v Higgins [2006] HLR 261, the existence of the ASBO against the son indicated that it would be reasonable to make an order;

(b) Wandsworth had failed to follow their ASB policy, which, in broad terms, indicated the possession proceedings would be instituted only where other remedies had failed. On the facts, said the court, the policy had been followed. There had been many other attempts to resolve the ASB, including the acceptance by Ms Webb and her son of an Acceptable Behaviour Contract. In addition, his Lordship was not entirely satisfied that a tenant could raise a defence/reasonableness argument based on the terms of an ASB policy

(I break here to note that his Lordship is, with respect, wrong to have any such doubts. An ASB policy is something that a local housing authority / housing association must have, see s.218A Housing Act 1996. The Secretary of State is further empowered to issue guidance on the contents of the same, see s.218A(7). It is, as a matter of public law, not open to public body to simply ignore policies or Government guidance – R (Rixon) v LB Islington (1998)  1 CCLR 340 – indeed, they have “special importance where the behaviour of the tenant’s children is at the root of much of the trouble” – per Brooke LJ in Moat Housing Group v Hartless [2005] EWCA Civ 287, at [102])

(c) The Judge had used the possession order as a means of further sanctioning the son, since it was primarily him and his behaviour that was likely to result in any breach of the terms of postponement. This was entirely legitimate and, whilst the Judge would have been well advised to expressly consider the interests of the other children and the harm that would result to them if the son were to breach the terms of the postponement, this was an ex tempore judgment and the Judge had the relevant evidence before her during her judgment.

(d) The Judge had taken the allegations of breach of an ASBO into account. It was, Wilson LJ held, inappropriate to even consider unproven allegations. They were irrelevant to the question of reasonableness and, as the Judge had taken an irrelevant factor into account, the whole decision had to fall.

Sedley LJ, in a short concurring judgment, went slightly further as regards point (c). To his mind, there is a difference between a court (i) making a tenant responsible for persons who the tenant has a degree of control over and (ii) making a tenant responsible for persons over whom the tenant has no control. The latter is impermissible (Wilson LJ (albeit obliquely) appears to say something similar at [5]. I think you need to read [5] with [24] to understand what Sedley LJ is saying).

In addition, the court should have given express consideration to the Article 8 rights of the other inhabitants of the house before making a possession order. The case appeared to Sedley LJ to be one where it was appropriate to adjourn on terms.

Mummery LJ added nothing of substance but dealt with a minor procedural matter.

This isn’t quite as strong a judgment from Sedley LJ as I’d hoped, but it’s far from bad news. I do think that there is some difficulty in the idea that a tenant should always be responsible for the acts of their visitors/other residents. Why should one adult be responsible for the acts of another adult? In the criminal field, we’ve abandoned any such idea (R v Simon Kennedy [2007] UKHL 38). Surely the time has come to recognise that Bryant has to have some limits? I do think the position as regards liability for the acts of ones children is more complex, but, as regards adults, it seems to me that this might be the start of a (welcome) retreat from Bryant.

• the TSA being asked to focus on “landlord services” (repairs, maintenance and customer services) and not wider strategic functions;
• where the TSA has evidence of poor performance, it will be empowered to commission an investigation and require further information to be provided. Conversely, where there is evidence of tenant satisfaction, the TSA should adopt a “light touch”;
• the TSA would not regulate ALMOs or TMOs.

It is a significant – and lengthy – document that you’ll need to read properly. Consultation ends on October 30, 2009 and responses should be sent to:

Tenant Empowerment and Local Regulation Team

Communities and Local Government

1/J6 Eland House

Bressenden Place

London

SW1E 5DU

or by email to: CrossDomainOrder@communities.gsi.gov.uk

(1) the council had implemented a “local connection” criterion into its prioritisation decisions after bidding had ended, but that local connection criterion was not set out in the policy though “it was averred to”.  It was argued that the lack of publicity given to that criterion and its consequential unavailability to the public meant that the policy was unlawful.  Indeed, on the facts, it appears that the Claimant only found out about the criterion after she had been top bidder for properties and been refused “as the years progressed”.  Readers will remember that this was the one point of success for Ms Lin in R(Lin) v Barnet LBC [2007] EWCA Civ 132 in which the CA held (at [48]) that, where a criterion was “central to the operation of a scheme”, it was required to be included in that scheme.

and (2) that the operation of the local connection criterion effectively imposed a blanket ban on households who did not have that connection.

In an unreported extempore judgment, CMG Ockleton (sitting as a Deputy Judge) refused the application for judicial review.  As regards the first point, the Deputy Judge found that “the exercise of the discretionary element of the policy did not have to be published and set out in the policy itself.  it bore no relation to the central issue of prioritisation and was clearly averred to in the policy itself.  Moreover it was not an important qualification and would, if incorporated into the policy document, have made the policy unwieldy”.  I have set that out from what appears on Lawtel partly because that seems counterintuitive (and, perhaps, if Robert Latham or Jonathan Manning [counsel for the Claimant and Defendant respectively] are reading this, they will let us know what “averred to” in the policy actually means and whether, in Robert Latham’s case, he will seek to appeal).  On the second point, which I think was probably a difficult argument to run in light of Ahmad (links to our note), the Deputy Judge found that this was a question of degree and all applications were reviewed on their merits and properties allocated by reference to prioritisation which was the overriding consideration.

Facts

Mr Pinnock had lived at 65 Meldon Road for 30 years, and lives there with his partner, Christine Walker, and their five children. The five children – Clive, Trevor, Devon, Orreon and Orraine – were involved in various offences and between 1998-2007, the Recorder, who made the demoted tenancy order, which began on 08 June 2007, “listed no less than 32 matters between 1998 and January 2007 involving the family, including sentences for criminal offences, the imposition and breach of ASBOs, an Anti-Social Behaviour injunction granted against Christine Walker and breach of that injunction” ([9]). New terms were included in the demoted tenancy agreement concerning nuisance, annoyance, disturbance, harassment etc. Pretty much the day before the demoted tenancy would have become secure again, Manchester served notice of proceedings for possession and extended the demotion until the Pinnocks gave up possession. The notice referred to two breaches of the amended demoted tenancy: Clive had resisted and/or obstructed a PC; Devon had pleaded guilty to causing death by dangerous driving and driving whilst disqualified and uninsured in the locality of the property. None of the facts at any time suggested that Mr Pinnock had been involved in any such activity.

Mr Pinnock sought an oral review of that decision, at which the review panel took account of more recent serious offences committed by the sons, including conviction of Clive and Devon for burglary; Christine Walker had blamed the police for Devon’s car crash. Mr Pinnock’s defence was that the children no longer lived at the property, to which the council found that “it remains the family home where your sons return on a frequent basis”. As regards Christine Walker’s blaming of the police, “The panel felt that this clearly demonstrated that both you and your partner have failed to address your responsibilities as parents. Furthermore you both appear to refuse to accept the seriousness of your sons’ behaviour …”. The children continued to pose a serious risk to the community.

At the County Court hearing under s 143N, Housing Act 1996, the judge appears to have proceeded on a gateway (b) path a la Kay/Doherty, and found that none of the matters referred to in the possession notice would have been sufficient on their own; the review panel had not ducked the issue of whether Clive and Devon were still living in the property; that the council was entitled to rely on matters after the possession notice which Mr Pinnock knew about and had an opportunity to deal with at the panel.

Submissions

Before the CA, Richard Drabble raised a number of arguments aimed both at the statutory process for review as well as the way it was handled in this case. He argued that the basis for the panel and County Court review was proportionality and that had not been considered (eg alternative remedies). Although the panel/County Court were entitled to have regard to events after the possession notice, that was only if one of the matters in the possession notice was upheld, but none was; the County Court judge had substituted his own decision for that of the review panel.

Andrew Arden for Manchester argued, amongst other things, that the qualified rights under Article 8 had been taken into account by the legislation; the County Court judge did not have jurisdiction to review the panel’s decision on jr grounds (that could only be done in the Administrative Court); it wasn’t necessary for the council to establish that there had been breaches of the tenancy agreement.

Judgment

Stanley Burton LJ, with whom Lloyd and Mummery LJJ agreed, proceeded first on an “apart from authority” basis ([26]-[32]). On that basis, he said that it was the whole process from the outset that needed to be considered in the context of Article 8 rights. When the demotion order is originally made, “… the court has found the removal of security a necessary and proportionate response to the conduct of the tenant or those residing with or visiting him“; and that where there had been conduct serious enough to justify a demotion order (as here), at the second stage, “… very little is required to justify the landlord’s decision to obtain possession. it would be wholly wrong, and inconsistent with the statutory scheme, to scrutinise the landlord’s decision at the second stage with the rigour required of the county court at the first stage”. As regards proportionality at the second stage, he said this

… is not a high test, and I see no real difference at the second stage between it and the domestic requirement, to which I refer below, that the landlord’s decision must not be one that no reasonable person would consider justifiable. If on review the landlord considers for good reason … that it is necessary or appropriate to obtain possession of a dwelling-house let on a demoted tenancy, and its decision is one that no reasonable person would consider justifiable, the requirement of proportionality will be satisfied. (original emphasis)

There then follow pages and pages – a bit of a cut and paste job – from Kay, Doherty, Doran, and Central Beds – with two “simple propositions” at [46]-[47]: in a statutory context like this one, if the provisions are incompatible with Convention rights, the landlord’s decision and that of the County Court is nonetheless lawful (s 6(2)(b), HRA); on a jr, the standards applicable are those applicable in a non-Convention domestic review (Doherty/Doran/Central Beds). Anyone hoping for further pearls of wisdom will be disappointed, I fear.

As regards the role of the County Court, he said that s 143D restricts that Court to considering whether the procedure had been followed. If it has been, the order must follow. He was fortified in this conclusion by three further points: (a) the county court has no power to make a quashing order, so that, if it did find the decision to be legally effective, it might have no alternative but to dismiss the claim for possession (so that the tenancy would become a secure tenancy again under s 143B(4)(b)); the whole process was intended by Parliament to be quick and section 143F(6) was directory rather than mandatory; his conclusion was consistent with the materially identical wording for introductory tenancies. Nobody had suggested here that the correct procedure had not been followed.

Although strictly obiter, therefore, he gives his views on a number of points:
What approach should the administrative court take? the court “should be cautious in the extreme before quashing a decision of a public landlord” (at [58]).
What reasons can be given in a notice? he says that such reasons may extend beyond the tenancy agreement. He is extensive in his interpretation of what can be taken into account:

My provisional view is that the reasons for the landlord’s decision may be anything relevant to its management of its housing estate, provided, of course, that it arises or becomes known after the date of the demotion order and so could not have been taken into account when it was made. If there are relevant reasons that justify the decision (in the sense that it cannot be said that no reasonable person would make that decision for those reasons) the Court should not, in my judgment, normally quash the decision.

What can be taken into account on review? anything that postdates the possession notice, provided that can be fairly done. The question is whether, at the time of the review, the landlord has a good reason to seek possession.

As for this case, he accepted that the review panel had ducked the issue of Devon’s residence, but that did not make the incident irrelevant. Christine Walker’s blaming of the police bore on whether she and Mr Pinnock were able and willing to exercise parental control; Orreon’s conviction for burglary after the possession notice was served was relevant. Even if the judge had jurisdiction, the review decision was not irrational.

Ms Ryan was the secure tenant of a an Islington property. In January 2003, she served notice of RTB and after two months Islington admitted the RTB, stating that valuation would be as of January 2003. In June 2003, Islington noted that specialist works were required – filling a crack in the rear wall, indicating subsidence. The valuer’s report of the same month noted sloping and springy floors, damp to a ceiling and walls, but did not mention subsidence. Value was given at £160,000 as at January 2003.

In August 2003, Islington served the s.125 notice, given a price of £122,000, with the £38,000 discount. It cited the floor and damp, but not the subsidence, as defects of which Islington was aware. The notice gave estimated charges (i.e the 5 year cap) on major works of £5,500 in total for Ms Ryan, £22,000 for the block. Ms Ryan was given 12 weeks to respond. The notice told Ms Ryan that she should request a revaluation by the district surveyor if there was any dispute over the defects identified (s.128).

In October 2003, Islington’s surveyor identified the subsidence and that underpinning works and subsequent structural works would be required. Ms Ryan’s case was that she was told at this time that the works would be carried out by March 2004. Islington insisted that the works had not been authorised at this time and that Ms Ryan had not formally told the works would be done.

Ms Ryan accepted the s.125 offer in November 2003 and IsIington proposed completion by July 2004. This didn’t happen and in September 2004 Islington served notice to complete under s.140. Ms Ryan’s solicitors raised the outstanding works and asked for a suspension. Islington served a further notice to complete within 56 days under s.141 in November 2004, warning that the claim to RTB would otherwise be deemed withdrawn under s.141(4). There was no completion. In May 2005, Ms Ryan began disrepair proceedings. Islington started works in November 2005, which were not fully completed by the time of the trial of the claim in July 2008.

Ms Ryan got an order for specific performance and damages for disrepair, but her claim for a declaration that her RTB application was not withdrawn and her claim for damages in the loss of the RTB claim were both dismissed. Ms Ryan appealed.

The main issue for the Court of Appeal was whether the structural defects were a ‘relevant matter’ for the purposes of s.141 Housing Act 1985 such that raising them stopped the effect of the notice to complete. Ms Ryan also disputed the Recorder’s dismissal of her claim for damages. There were a couple of disputed findings of fact, which the Court declined to interfere with.

Held:
1. Structural defects were not a matter relevant to the grant for the purposes of s.140. These were matters relating to the conveyance or to the proposed lease. Secondly, “relevant ‘outstanding’ matters in section 140(1)(b) means matters that have not been ‘agreed or determined’ within the meaning of section 140(1)(a), a phrase deriving from section 138(1), which refers to the landlord’s obligation to make a grant ‘as soon as all matters relating to the grant have been agreed or determined ….’ “. Thirdly, there is nothing in the RTB legislation that obliges a seller to put the property in repair before sale. Ms Ryan could pursue breach of s.11 L&T Act 1985 or tenancy agreement, but she could not make the repair effectively a condition of sale. (But see the discussion of the total destruction of the demise at para 60).

Assuming that the subsidence was a structural defect within the meaning of s.125(4A) – which Islington argued otherwise – then the proper point for it to be raised was at the time of the s.125 Notice, by request for a revaluation by the district surveyor.

2. The claim for damages on the basis of a lost right to purchase the flat was dismissed in the court below but without sufficient reasons being given. That said, Ms Ryan had failed to provide sufficient evidence to establish that the condition of the property prevented her from obtaining a mortgage. There was just one brief discussion with a mortgage advisor, which was not conclusive. Ms Ryan’s case that the damages were foreseeable by Islington as resulting from the failure to repair was not attractive. While Islington assumed the burden of the repairing obligations with the secure tenancy, it did not also assume an obligation to compensate her “in remote circumstances in which, because of its failure to perform its repairing covenants, Ms Ryan was unable to complete a purchase of the flat under the ‘right to buy’ provisions. Any such purchase was not in contemplation when the secure tenancy was granted, and so that could not have been the kind or type of loss for which Islington ought fairly to be taken to have accepted responsibility.” [para 73].

The appeal was dismissed.

So, apart from the familiar lesson that some local authories will not carry out repairs until disrepair proceedings have begun, if then, it is also clear that any dispute about the condition of the property and structural defects should be raised at the time of the .s125 notice, if they coudn’t be before. Disrepair is not a reason to delay the purchase process, if anything it counts only in the valuation. But also note Islington’s argument that disrepair, including subsidence, were not structural defects for the purposes of s.125(4A) as ‘structural defect’ was something inherent in the design or construction of the property from the beginning, such that they would not fall under disrepair. The Court made no finding on this argument, but it will no doubt be run again.

In this position, assuming Ms Ryan could get a mortgage, her contributions to the works would have been capped under the s.125 notice, so that she would not have had to pay a contribution for them, which might be a consideration for others.

The Judge below had found that Ms Freeman had stayed in the flat full time with her father for the 12 months prior to his death, but that she had not ‘resided with’ him.

In brief, Ms Freeman had a flat of her own, which she sometimes let. Between 1999 and 2002 she lived at her flat. From 2002 she started to stay at her father’s flat about 3 days a week to look after him as he needed care. She lived at her father’s flat full time from about June 2004. Her father died in June 2005. Ms Freeman was paying the TV licence, utilities and Council tax on her flat for most of that year, but wasn’t living there. She let friends stay in her flat from early 2005 and let her flat in early June 2005. The only correspondence address she changed was for her credit card. Some belongings remained in her flat, ‘for convenience’. Her father completed an HB application in July 2004 which said he was the sole occupant.

At the Court of Appeal, Ms Freeman contended that precedent cases on ‘residing with’ showed that there was no case where an occupier who had lived with the tenant for 7 days a week had failed in a succession claim..

Islington argued that ‘residing with’ involved an issue about ‘only and principle home, but mainly that the Judge below had been right on the law and on the facts.

In Jacob LJ’s lead judgment, the precedents were considered – the main point taken from Peabody Donation Fund Governors v Grant [1982] 2 EGLR 37 CA, Swanbrae Ltd v Elliott (1987) 19 HLR 86 CA and Hildebrand v Moon (1990) 22 HR 1 CA was that ‘resides with’ carrys the meaning of ‘making their home there’ (Swanbrae), ‘more than live at’ (Swanbrae), ‘having made a home there (Hildebrand). The intention to live with the tenant to nurse him/her does not preclude ‘residing with’ but is not conclusive of it, so regard must be had to the intention of the occupant post death of the tenant to shed light on the nature of the occupation pre-death [para 27].

In this case, the Judge below had not misdirected himself in saying ‘reside at’ is more than ‘living at’ (this was simply a misqutation, which should have been ‘reside with is something more than living at’ per Sachs LJ in Foreman v Beagley [1969] 1 WLR 1387). ‘Residing at’ was not a higher test – there was no significant difference and it was probably a slip in an extempore judgment, where the precise terms had been used in considering the statutory test. Further, in using the phrase ‘settled home’, the Judge below had done no more than applying a home-making intention – more than ‘staying with the tenant for a limited time and for a limited purpose [para 33]. The Judge’s finding in law and on the facts upheld.

Islington’s points about ‘principal or only home’ did not need to be considered, but it would only be concerned with the facts at the time of death of the tenant, unlike the ‘reside with’ test.

Waller LJ simply considered that the test was whether the claimed successor could fairly say ‘but this is my home and it has been for 12 months’. [para 40]. In this case, the appellant could say it was her home, but not for 12 months.

Hard to say where this case takes us. The Court is clear that simply having another property/tenancy during the 12 months is not an automatic disqualification, which Islington had suggested. Nor is having scant ‘official’ evidence of residence – although depending on the facts of the situation that may or may not go to ‘home-making intention’. However, Swanbrae had shown that living at the property with the tenant wasn’t enough where a ‘permanent’ home elsewhere was maintained (with the claimant’s son in occupation in that case) and the claimant’s stated intention was to ‘move in with her mother as long as was necessary (to care for her)’ – for a limited time and limited purpose. The present case was clearly more borderline in both evidence and intention, but the ‘residing with’ test as it is put forward here – ‘making a home’ or ‘community of family living’ with the tenant (Peabody) – is a highly factual issue, but also a highly interpretative one in often fluid circumstances. Precisely the kind of decision on the facts that the Court of Appeal are reluctant to touch.

The lesson on the would be successors’s advisor’s side is that a simple 12 month residence is not necessarily sufficient to establish succession, evidence of intention to make the property home for the whole of the 12 month period is important.

Section 315 essentially creates a local connection for service personnel with the areas where they resided or were employed. Where authorities use local connection as a priority tool for Part 6, they are also reminded that serving or former members of the armed forces may have a local connection through previous residence in the district as a result of a former posting in the area while serving in the Armed Forces (para 12(b)).

There we go – I suspect this may have more impact in some areas than others.