Dove v London Borough of Havering [2017] EWCA Civ 156

This was an appeal of a possession order made against the joint (formerly secure) tenants on the ground of non-occupation as primary or only home, and also serious rent arrears. Both the Ms Dove (twin sisters), appealed.

Following an inspection in September 2010, Havering decided that neither Ms D was occupying the property as their home. Housing benefit was terminated in September 2011 and a Notice to Quit served in October 2011. The termination of housing benefit was taken to the FTT (Social Entitlement Chamber) on appeal by the Ms Ds.

In June/Aug 2013, the FTT(SEC) issued a decision that neither sister was in occupation as their principal home.

The FTT(SEC) findings were:

Ms Elaine Dove has had an intimate relationship with a male partner called Andrew Jeffrey who lives in Kilburn. It has lasted for some thirty years. Ms Elaine Dove is with her partner in Kilburn for four out of seven days a week on average. She has a key to his flat. They share the cooking at Mr Jeffrey’s flat; she nominated him on her passport as an emergency contact; and some post was addressed to her there. She had also given the police that address as her address in the course of an investigation in which she was involved. A search of the flat at Highfield Tower in July 2011, recorded on DVD, showed a flat not in regular occupation. The FTTJ concluded on the basis of the evidence that the flat at Highfield Tower was not in full and regular use as a home but gave the impression of a storage facility for goods bought by Ms Elaine Dove. The FTTJ also drew attention to very low consumption of gas and electricity.

In the case of Ms Evelyn Dove the FTTJ found that she had a long-standing intimate relationship with Lawrence Wiles who lived in Walthamstow. That relationship had been going on for about 20 years. She spent up to three nights a week and weekends at his flat: that is five days a week on average. She has a key to the flat. This led the FTTJ to “the inescapable conclusion that she spent the majority of time at [Mr Wiles’ flat]”. In addition to the search already referred to the FTTJ referred to activity shown by Ms Evelyn Dove’s bank account which linked Ms Evelyn Dove to the Walthamstow area. This corroborated the conclusion that Walthamstow was where she spent the majority of her time. Although she was registered with a GP in the area of Highfield Towers, her frequent hospital visits took place close to Walthamstow rather than at the hospital nearest to Highfield Tower. Ms Evelyn Dove also made regular trips to Italy where she appears to have bought earthenware and the like which she sells on eBay.

At the first instance trial of the possession claim, there was an issue raised about whether the FTT decision constituted an issue estoppel, indeed the first instance judge had stated that it was not open to him to reach a different finding of fact to the FTT.

This was crucial as the Ms D’s defence at first instance was simply that the FTT decision was wrong.

However, the court of appeal declined to decide the issue estoppel issue on the basis that the first instance judge had also heard the evidence and made his own findings of fact.

The issue before the judge was not of course whether either Ms Dove was occupying the flat at Highfield Tower as a home. On the basis of the judge’s findings of fact one or other of them may or may not have been. It was whether either of them was occupying that flat as her principal home. The judge’s findings of fact are, in my judgment, clear to the effect that neither of them was. As I have said each of them had a settled way of life and there was no suggestion that it would change in the future. This is not, therefore, a case which turns on any intention to return or revert to a previous pattern of life. The question in cases which turn on an intention to return, as explained by Thorpe LJ in Camden LBC v Goldenberg (1996) 28 HLR 727 at 733, is whether a period of absence breaks the continuity of residence. In a case such as the present where the pattern of residence has been the same throughout the period under consideration there has been no break in continuity. So the question is a different one: is the pattern of residence such that either Ms Dove is occupying the flat at Highfield Tower as her principal home?

Mr Manning (for Ms D) said that the judge failed to consider the intention of either Ms Dove as regards the flat at Highfield Tower. I do not accept that submission. Their intentions, in so far as there was any evidence on that topic, are summarised by the judge at (39). An intention to retain a flat as a place to be alone is certainly a factor in considering whether the flat is occupied as a home, but it is of little help in deciding whether that flat is a person’s principal home. I do not, of course, suggest that that question is to be decided by a simple “day count.” But I do not think that the judge decided the question on that basis. He looked at all the evidence (including that adduced before the FTT) in the round.

The appeal was dismissed.

There was a further issue on whether the first instance judge should have adjourned the trial hearing. Evelyn Dove had had legal aid for the case, but the funding was withdrawn shortly before trial so that she was acting in person, and applied to adjourn. The judge delayed the start of trial to the next day, but refused the adjournment.

The court of appeal upheld the judge’s approach

In addition to the general undesirability of adjourning a trial to which all three members of the court adverted in Denton, there are, in my judgment, a number of factors specific to this case that militated against an adjournment. First the application was made very late. Second, the cause of the difficulty was Ms Dove’s legal representatives’ tardiness in applying for an extension of legal aid. Third, the trial date had already been adjourned once before. Fourth, rent at the full rate had not been paid for many years. This was not simply a case of disruption to Havering: the debt was increasing week by week. There was no realistic prospect that the Misses Dove could pay off the arrears or even pay the current rent. Fifth, there was no realistic prospect that the Misses Dove could pay the costs thrown away by an adjournment: and indeed there is no record of any offer by them to do so. Sixth, an adjournment would have caused disruption and inconvenience to other court users. Seventh, there was no certainty that an adjournment would serve any useful purpose. Set against that was the difficulty, which the judge recognised, that the Misses Dove would face in defending the case without legal representation. What weight to give each of these factors was essentially a matter for the judge. This court should not interfere with case-management decisions of this kind unless compelled to do so. I would reject this ground of appeal.