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18/12/2011

Home, realistically and objectively

London Borough of Islington v Boyle & Anor [2011] EWCA Civ 1450

This rather sad case was Islington’s appeal on the issue of whether Ms Boyle was occupying the flat she had under a secure tenancy as her ‘sole or principal home’. It is a highly significant case in which the Court of Appeal gives guidance on how the Court should approach both ‘continued occupation’ and ‘occupation as only or principal home’ in contested cases.

Ms B had a secure tenancy of a Highbury flat from 1996. She lived there with her ‘on-off’ partner and their three children. The eldest son, Daniel, was severely autistic and suffered from epilepsy, ectodermal dysplasia and Tourette Syndrome. He attended a special school in Muswell Hill from 1999.

In 2004, the partner moved out and bought a house in Suffolk. Later in 2004, it was decided that in view of Daniel’s aggressive behaviour towards his sisters, Ms B and her daughters would live in the Suffolk house and her partner would live in the Highbury flat with Daniel and look after him. The original plan was for this to be for 6 months. Ms B moved personal belongings to Suffolk, but her furniture remained in the Highbury flat. A dishonest benefit application was made by Ms B or her partner on the basis that she remained with Daniel in the Highbury flat. The planned 6 months became an extended period.

In 2006 there was an abortive right to buy application in which Ms B said the Highbury flat was her only or principle home.

In January 2007 Ms Boyle and Mr Collier wrote a letter to Islington in which they acknowledged that they had not gone about matters properly in relation to the tenancy and claims for benefits. They asked permission for Mr Collier to live in the Highbury flat so that Daniel could continue to stay in London. At a meeting arranged to discuss the letter, Islington told them that it would not accept the proposed arrangement.

It appears that in a telephone call with Mr Milner of Islington in October 2007 Ms Boyle was asked whether the Suffolk house was her principal home and she replied that she was living in the country then.

Islington served Notice to Quit in October 2007. The partner applied, ex parte, under the Family Law Act 1996 for an order transferring the tenancy to him. An interim order was made to that effect. Ms B was on notice but did not oppose. At the return hearing in February 2008, the partner’s application was dismissed. The District Judge’s order stated that the court found that Ms Boyle was and had been a secure tenant of the Highbury flat within the meaning of section 79 of the 1985 Act. Islington appealed this finding. The appeal was allowed, but without determining whether or not Ms B was the secure tenant. Islington issued the present possession proceedings.

In 2008, Ms B returned to the Highbury flat, while the partner and Daniel went to the Suffolk house with the other children. Daniel died in September 2011.

Islington’s possession claim asserted that Ms B had lost security of tenure as she had ceased to occupy the Highbury flat as her only or principle home between 2004 and September 2008.

A Defence was served only on behalf of Ms Boyle. In it she denied, among other things, that she had ever ceased to occupy the Highbury flat as her only or principal residence since she intended to return there if and when that was possible or practicable and she did return there in September 2008; Daniel’s continued attendance at Treehouse school was the overriding consideration as to where she should live; prior to moving with her daughters to the Suffolk house, Daniel had exhibited inappropriate, aggressive and sexual behaviour towards the girls, and she felt she could not cope; she nevertheless wished to return to occupy the Highbury flat; she was only a licensee in the Suffolk house; her mother and sister lived near to the Highbury flat; she was unhappy living in the Suffolk house and relapsed into alcohol dependency, and consequently she had moved back to the Highbury flat in order to prioritise her recovery; at all material times her son Daniel was occupying the Highbury flat and her furniture remained there, namely her bed, settee, fridge, cooker and television.

Ms B’s witness evidence stated that it had always been her intention to return to the Highbury flat, and that staying in the Suffolk house had been an unplanned and pragmatic response to the situation with the children.

Ms B made an application for summary determination of the claim on her defence. This was a two day hearing and her application failed.

After a 3 day trial, the Judge at first instance found for Ms B. The Judgment stated that the issue to be determined was:

So the question which has to be considered and answered is whether Ms Boyle at the relevant time occupied Avenell Mansions “as her only or principal home”. It is common ground that the ‘relevant time’ is the date upon which the notice to quit served by Islington on Ms Boyle on 29 October 2007 expired – namely 26 November 2007. Ms Boyle may, or may not, have had different intentions at different times but the position as it was on the date of expiry of the notice to quit may be decisive in that if she did not at that time occupy the property “as her only or principal home” then the tenancy cannot afterwards become a secure tenancy.

The fact that she was not actually living in Avenell Mansions at the relevant date does not necessarily mean that the question whether she had a secure tenancy at that time must be answered in the negative. It depends upon how she viewed her long term future. Equally, she may or may not have changed her mind from time to time. The onus is on her to establish that she had a long term intention to return to Avenell Mansions and to occupy it as her sole or principal home.

The Judge made references to the findings in the Family Law case to the effect that Ms B was found to remain the secure tenant, agreeing that Ms B staying in the Suffolk house “was a family arrangement, driven by the children’s needs, which had initially been a temporary arrangement, but one which had become prolonged, and was a pragmatic situation”. The Judge accepted that Ms B intended to return tot he Highbury flat, but could not be sure quite when at the relevant time.

The Judge then referred to Brown v Brash and Ambrose [1948] 2 KB 247 and Brickfield Properties Ltd v Hughes (1987) 20 HLR 108, and finished:

It seems to me that these 2 cases are authority for the proposition that if Ms Boyle had an intention to return to Avenell Mansions at some time in the future – and I think that that time in the future probably depended upon her children, particularly her daughters, growing towards adulthood – and given that she had left furniture in the flat and Paul Collier and their son Daniel were living there, then she satisfied the test for occupying the premises as her only or principal home.

Hammersmith & Fulham LBC v Clarke deals with changes of mind. Keene L.J. emphasised that it is necessary to look at all the evidence. While the relevant date for determining the question whether the tenant’s condition is fulfilled is the date of the expiry of the notice to quit, evidence relating to periods before and after that date may be relevant: the focus is “not on fleeting changes of mind but on the enduring intention of” the tenant. Thus not too much reliance should be placed on particular comments made at any one time….

He held that Ms B remained the secure tenant accordingly. Costs awarded to Ms B, including the failed summary judgment application.

Islington appealed, on the grounds that the Judge had failed to address the issue of whether Ms B was occupying the Highbury flat as her only and principal home, instead focussing wholly on whether she could be said to continue to satisfy the tenant condition.

Islington agreed that Ms B remained in occupation, one limb of the tenant condition, but denied that it could have properly been found to be her only or principal home.

Brown v Brash and Ambrose and Brickfield Properties Ltd v Hughes were not authorities on the ‘only home’ point as they only addressed continuing occupation despite the tenant’s physical absence. Further, the factual issues considered by the Judge only concerned the Highbury flat.

There was no acknowledgment that Ms Boyle was also occupying the Suffolk house as her home, and no attempt to weigh in the balance Ms Boyle’s way of life in the Suffolk house in determining which of the two properties was Ms Boyle’s principal home at the date of expiry of the notice to quit.

As Ms B was living in the Suffolk house at the time of the service of the Notice to Quit, the burden was on her to show the Highbury flat remained her sole or principal home. She had admitted ‘living in’ the Suffolk house, had taken personal possessions with her and had been there 3 years at the time of the NTQ. She had not opposed the partner’s FLA application.

The Judge should have found Ms B’s credibility was undermined by the benefit fraud history and the failure to disclose non-residence in the RTB application.

Islington also objected to the blanket costs award, pointing to the substantial time involved in the failed summary judgment hearing.

Ms B raised a new point in response. She argued that the effect of the occupation order made in the Family Law Act case meant that when the NTQ expired “the effect of the occupation order made by DJ Bowman, which was in force at that time, was that Ms Boyle was deemed to be in occupation of the Property as her only or principal home, and so she remained a secure tenant.”. As an occupation order had been made in favour of the partner, who was in occupation, this preserved Ms B’s occupation by way of s.30 and s.36 Family Law Act.

The Court of Appeal held:

A line of cases leading up to and summarised in Amoah v London Borough of Barking & Dagenham (2001) 82 P&CR DG 6 established that it was possible to remain in occupation of a property while being physically absent. In view of the present case, the relevant principles for determining whether the tenant remained in occupation are as follows:

First, absence by the tenant from the dwelling may be sufficiently continuous or lengthy or combined with other circumstances as to compel the inference that, on the face of it, the tenant has ceased to occupy the dwelling as his or her home. In every case, the question is one of fact and degree. Secondly, assuming the circumstances of absence are such as to give rise to that inference: (1) the onus is on the tenant to rebut the presumption that his or her occupation of the dwelling as a home has ceased; (2) in order to rebut the presumption the tenant must have an intention to return; (3) while there is no set limit to the length of absence and no requirement that the intention must be to return by a specific date or within a finite period, the tenant must be able to demonstrate a ‘practical possibility’ or ‘a real possibility’ of the fulfilment of the intention to return within a reasonable time; (4) the tenant must also show that his or her inward intention is accompanied by some formal, outward and visible sign of the intention to return, which sign must be sufficiently substantial and permanent and otherwise such that in all the circumstances it is adequate to rebut the presumption that the tenant, by being physically absent from the premises, has ceased to be in occupation of it. Thirdly, two homes cases, that is to say where the tenant has another property in which he or she voluntarily takes up full-time residence, must be viewed with particular care in order to assess whether the tenant has ceased to occupy as a home the place where he or she formerly lived. Fourthly, whether or not a tenant has ceased to occupy premises as his or her home is a question of fact. In the absence of an error of law, the trial Judge’s findings of primary fact cannot be overturned on appeal unless they were perverse, in the sense that they exceeded the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible; but the appeal court may in an appropriate case substitute its own inferences drawn from those primary facts [para 55].

However, there is less clear guidance in precedent cases on the ‘only or principal home’ condition. In Crawley BC v Sawyer (1987) 20 HLR 108, a tenant had been staying with his girlfriend and told the Council they intended to purchase her home. The Council served NTQ but by the time it expired, the tenant had broken up with his girlfriend and returned to the property. The Court of Appeal dismissed the Council’s appeal on the basis that the trial judge was entitled to find that the stay with the girlfriend was on a temporary basis.

In Ujima Housing Association v Ansah (1997) 30 HLR 831, the Court of Appeal stated that:

The respondent was no longer in physical occupation of Flat B and the onus was upon him to establish that he was still occupying the flat as his principal home. Whether he was doing so is not, in my judgment, to be determined by the subjective intention or motives of the person claiming still to have an assured tenancy, but by an objective assessment of his actions and intentions. Were it otherwise it would lead to inconsistent decisions being given in cases where the facts were parallel.

Hammersmith & Fulham LBC v Clarke (2001) 33 HLR 26 involved a tenant who had had various stays in a nursing home. She signed a note saying she intended to stay permanently in a home and the Council served NTQ. By the time of trial, she was back in the property and said she had only signed the note while depressed. The Court of Appeal dismissed the Council’s appeal, adding, in relation to the Ansah ‘objective assessment’:

The relevance of intention has been emphasised in other cases including that of Ujima Housing Association v Ansah …, though it was made clear there that what the court is concerned with is an objective assessment of the tenant’s actions and intentions, rather than his or her subjective intention …

However, intention is undoubtedly of great importance since it may be the only way of distinguishing between a dwelling which has in effect been abandoned by the person as his only or principal home and a dwelling which has not. When the court refers to an objective approach, it is only emphasising that one has to look at all the evidence in order to ascertain intention and not merely what the tenant says in the witness box his or her intention was.

Moreover, the issue was not fleeting changes of mind, but enduring intention.

The Court of Appeal in the present case clarified the meaning of ‘objective assessment’:

Where the defendant is physically absent from the dwelling, in which the defendant formerly lived as his or her only or principal home, the defendant’s intentions about living there again as the sole or principal home will be critical to the question whether the Tenant Condition is satisfied. Plainly, without that intention, the Tenant Condition cannot be satisfied. It is not sufficient, however, for the defendant merely to give oral evidence of his or her subjective belief and intention. The credibility of the defendant’s evidence as to belief and intention must be assessed by reference to objectively ascertained facts.

As this case made clear, it may be that a defendant may honestly and strongly intend to return and regard their occupation of the disputed property as being as their sole or principal home. However, this must be consistent with the objective facts. “If objectively it is impossible fairly to describe the dwelling as being occupied as the defendant’s sole or principal residence, even if legally he or she is still in occupation of it (by virtue, for example, of the presence of furniture, personal possessions or people), then the Tenant Condition is not satisfied however much the defendant may intend to live there again and believe it remains his or her sole or principal home. [para 63]”

The principles relating to assessment of the ‘only or principal home’ condition, where the tenant apparently has two or more homes, were set out as follows:

First, the length or other circumstances of the tenant’s absence may raise the inference that the dwelling which is the subject of the proceedings ceased to be the tenant’s principal home so as to cast on the tenant the burden of proving the contrary. Secondly, in order to rebut that presumption, it is not sufficient for the tenant to prove that at the material time it was his or her subjective intention and belief that the dwelling remained the principal home. The objective facts must bear out the reality of that belief and intention both in the sense that the intention and belief are or were genuinely held and also that the intention and belief themselves reflect reality. The reason for the absence, the length and other circumstances of the absence and (where relevant) the anticipated future duration of the absence, as well as statements and conduct of the tenant, will all be relevant to that objective assessment. Thirdly, the court’s focus is on the enduring intention of the tenant, which, depending on the circumstances, may not be displaced by fleeting changes of mind. Fourthly, the issue is one of fact to be determined in the light of the evidence as a whole, and in respect of which the trial judge’s findings of primary fact can only be overturned on appeal if they were perverse in the sense that I have mentioned earlier; but the appeal court may in an appropriate case substitute its own inferences drawn from those primary facts [para 65]

The tenant condition must be satisfied at the date of expiry of the Notice to Quit. It is entirely possible for the tenant to pass in and out of secure status, Basingstoke and Deane Borough Council v Plaice (1995) 27 HLR 433 (CA). That said, what happened before and after the date of expiry of the NTQ may show light on the state of affairs at the date of expiry of the NTQ.

In the present case, while the Judge was correct that the facts supported Ms B remaining in occupation, he had not gone on to consider only or principal residence on all the facts.

It was certainly not the case that the only conclusion that the Judge could have reached was that Ms B occupied as her only or principal home. But also nor was it certain that the Judge ought to have found that it was not Ms B’s only or principal home. There was significant evidence indicating either way and it would not be right for the Court of Appeal to draw its own conclusions from the Judge’s inferences from the facts.

The Family Law Act argument raised by Ms B was rejected:

There are two straightforward grounds for rejecting Ms Boyle’s case on this aspect of the appeal. First, section 30(4)(b) would only apply if Mr Collier occupied the Highbury flat as his only or principal home. It plainly was not his only home. Whether or not it was his principal home has never been tried or determined. The point was not raised below and so no appropriate findings of fact on the point were made by the Judge.

Appeal allowed. The claim was remitted for re-hearing.

On costs, the Judge’s order was sat aside with the trial judgment, but even if it had not been, the appeal on the costs of the summary judgment application would have been allowed.

The starting point must be that Islington was entitled to the costs of Ms Boyle’s unsuccessful application. If that application, although unsuccessful, resulted in a saving of some costs of the trial, there might have been grounds for an order that Islington recover only part of its costs of the application. Again, it would have been legitimate for Islington’s costs of the summary judgment application or some of them to be set off against Ms Boyle’s costs of the proceedings (other than her costs of the application).

Comment

The guidance at paras 55 and 65 is going to be important in all non-occupation cases. There are effectively three matters to be established. Firstly, are the facts such as to give rise to an inference of non-occupation. If they are, then the burden is on the defendant is to show intention to return, formal outward signs of that intention and a realistic or practical possibility of doing so, establishing continuity of occupancy.  Lastly, on the ‘only or principal home’ issue, the tenant must show a genuine and enduring belief or intention that the property is the principal home, which belief must ‘reflect reality’. Momentary or fleeting changes of mind are not determinative.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

6 Comments

  1. chief

    The Supreme Court has refused Mrs Boyle permission to appeal.

    Reply
  2. Mark Avery

    Does this mean that Islington sucessfully gained possession of the property on the re-hearing ?

    Reply
  3. Alex

    Hello Giles, would it be appropriate to apply the ‘Boyle principles’ on ‘only or principal home’ to determining whether a landlord is ‘resident’ i.e. in terms of s 3A(2)(b) PEA 77 and Sch. 1 para. 10(1)(b) HA 1988?

    Reply
    • Giles Peaker

      I don’t see why not – certainly arguable.

      Reply
      • Alex

        Thank you

        Reply

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