Freeman v London Borough of Islington [2009] EWCA Civ 536 was an appeal to the Court of Appeal from a Circuit Judge’s finding that Ms Freeman was not entitled to succeed to her father’s secure tenancy under s.87 Housing Act 1985. At issue was the definition of ‘has resided with the tenant throughout the period of twelve months ending with the tenant’s death…’ [S.87(b)]

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.