Freeman v Mayor and Burgesses of the London Borough of Islington
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jacob,And,Lord Justice Longmore,Lord Justice Waller |
| Judgment Date | 11 June 2009 |
| Neutral Citation | [2009] EWCA Civ 536 |
| Date | 11 June 2009 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2008/2401 |
[2009] EWCA Civ 536
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CLERKENWELL & SHOREDITCH
COUNTY COURT
His Honour Judge Mitchell
Before: The Rt Hon Lord Justice Waller
The Rt Hon Lord Justice Longmore
And
The Rt Hon Lord Justice Jacob
Case No: B5/2008/2401
8ECO3794
Nicholas Isaac (instructed by Mary Ward Legal Centre) for the Appellant
Christopher Baker (instructed by London Borough of Islington Legal Services) for the Respondent
Hearing date: 13 May 2009
Lord Justice Jacob:
This is an appeal from a judgment of HHJ John Mitchell of 24 th September 2008. It is by permission given by me on the papers. The Judge made a possession order in respect of a flat in Islington in favour of the appellant Council (LBI). The appellant contends he was wrong to do so because she was entitled to a secure tenancy pursuant to the provisions of s.87 of the Housing Act 1985.
This provides:
A person is qualified to succeed the tenant under a secure tenancy if [s]he occupies the dwelling-house as [her] only or principal home at the time of the tenant's death and either
…
(b) [s]he is another member of the tenant's family and has resided with the tenant throughout the period of twelve months ending with the tenant's death …
The judge found that the appellant was occupying the flat at the time of the death of her father (the tenant) as her only home, but that she had not “resided with” him throughout the previous year. This was so despite the fact that she had actually stayed in the flat with him full-time during that year.
The appeal thus turns on the meaning of “resided with” in s.87. If mere physical presence in the flat with and tending the tenant on a full-time basis is enough, then the appeal should be allowed. If more is required, one needs to know what that “more” is and whether the facts amount to that “more.”
By a respondents' notice the Council challenges the finding that at the time of death the flat was the appellant's only home. The challenge as it emerged at the end of Mr Christopher Baker's argument for the Council was essentially conditional on the appeal on the main point succeeding.
The Judge recited the facts in a wholly admirable way. What follows is their essence:
i) The flat had previously been let to members of the respondent's family, first in 1979 to her grandparents and then to respondents' father in 1999 under a secure tenancy.
ii) In 1989 the appellant bought a flat in Hackney, Lordship Park N16. From time to time she let it, living with a friend meanwhile. However in 1999 she moved back to that flat.
iii) There she lived full time until her father's health deteriorated in 2002. He needed care and she started staying with him for about 3 nights a week.
iv) Eventually there came a time when she started staying with him full-time. There was a dispute about when. The judge carefully assessed the evidence about that. On the basis of the evidence of a number of witnesses other than the appellant (whom he held “unreliable”) he held (Judgment [40]) that the respondent “was living there seven days a week by 20 th June 2004.”
v) The appellant's father died just over a year later, on 30 th June 2005.
vi) The appellant's own flat in Hackney was unoccupied during most of the year before the death. She was paying the TV licence, the utilities and the Council tax.
vii) In early 2005 the appellant allowed some friends to stay at her flat for a short while.
viii) In April 2005 the appellant became unwell and took long term sick leave from her employment.
ix) On 6 th June 2005 the appellant let her flat under a short assured tenancy for six months.
x) Throughout the year the appellant did not change her correspondence address from the Hackney flat save for that for her credit card. That she changed to her father's flat by 25 th January 2005.
xi) The appellant left some belongings at her Hackney flat “not as an indication that she was returning there but as a matter of convenience.”
xii) The appellant's father completed a housing benefit form on 14th July 2004 (the judge mistakenly said 15 th April 2005) in which he said no one was living with him – a point in time when according to the respondent she was staying virtually full time. The date was just before the commencement of the crucial year.
xiii) After her father's death, on 1 st August 2005 the appellant wrote to the Council asking that the flat be put in her name saying she had “moved in permanently to provide 24hr care earlier this year.”
I turn to the interpretation of “residing with”. The phrase was not new to the Housing Act 1985. It first appeared in the context of housing in s.12(1)(g) of the Increase of Rent and Mortgage Restriction Act 1920. It appeared again in the Rent Act 1968, Sched. 1 para 7, the Rent Act 1977 s.2(1)(a) and Sched. 1 para 3 and para 7, the Housing Act 1980, s.30. The “only or principal home” phrase first appeared in the Housing Act 1980.
The parties were agreed that authorities under these Acts were applicable to the present case. We were taken to the following (in some cases only by reference in later cases): Collier v Stoneman [1957] 1 WLR 1108, CA. Foreman v Beagley [1969] 1 WLR 1387, CA, Morgan v Murch [1970] 1 WLR 778, CA, Peabody Donation Fund Governors v Grant [1982] 2 EGLR 37, CA, Hampstead Way Investments Ltd v Lewis-Weare [1985] 1 WLR 164, HL, Swanbrae Ltd v Elliott (1987) 19 HLR 86, CA, Crawley B.C. v Sawyer (1988) 20 HLR 98, CA, Hildebrand v Moon (1990) 22 HLR 1, CA.
Mr Nicholas Isaac, for the appellant, produced a helpful table summarising the facts and the results of the cases. He submitted that there was no case where an occupier who lived seven days a week with the tenant for the requisite period in the premises concerned had failed in his/her claim to succession. The only seven day case where the claim failed was Foreman. The failure was because the tenant (the claimant's mother) was in hospital throughout the relevant period so there was no “residing with” the tenant.
It is of course only of limited help to look at the facts of other cases. Of more significance is what has been said about the true interpretation of the “resided with” test in the various cases. In Collier Jenkins LJ applied the test set out by Lord Evershed MR in Edmunds v Jones [1957] 1 WLR 118 at p.1120
“I think that the words 'residing with' must be given their ordinary popular significance. They do not, I think, involve any technical import or have some meaning only to be defined by lawyers. Giving them, then, the ordinary sense of the language it is, to my mind, necessary in order that paragraph (g) may be satisfied, that the person claiming to succeed to the tenancy of the particular premises must fairly and truly be said to have been residing with the predecessor in those premises in the sense that the successor lived and shared for living purposes the whole of the premises to which he or she claims to have succeeded.
A grandchild and his wife shared a 2-bedroom flat with the grandmother tenant. There was communal living and eating and no question (as there had been in Edmunds) of a sub-tenancy. Sellers LJ said at p.118
The grandmother, as tenant, had control of the premises, and I find it difficult to see how, without a tenancy of their own, the plaintiff and her husband, making their home there, could be said not to be residing with the grandmother up to the date of her death.
So the claim to succession was upheld.
The reference to “for living purposes” in Evershed MR's formulation is important – as will be seen the purpose of living at the premises has been recognised as a significant factor in the “residing with” test. Also of importance is Sellers LJ's use of the phrase “making their home there.”
In Foreman Russell LJ said the following at p.1391
It is never very wise in these cases to generalise; but at the least it seems to me that in the phrase in this context the alleged second successor must be able to point to his situation as being a member of the tenant's household.
Sachs LJ said:
AndLike Russell L.J., I see the danger of generalising when so great a number of different situations can arise, but to my mind the words “residing with” import some measure of factual community of family living and companionship. (I only hesitate to use a phrase containing the somewhat litigated word “household” because it may have a wider meaning than the concept in mind).
One ….. must be careful not to open the way to conferring benefits —to the detriment of the rights of the owners of the premises —on wider categories of persons than the legislature intended.
The word “resides” has been given varying meanings according to its context: the same may occur with the phrase “residing with.” It seems to me that in this particular context it imports, as indeed Mr. Marshall rightly conceded, a quality of residence that would not normally obtain, for instance, when a relative is living at premises merely as a caretaker of part or the whole, or living there merely as a salaried hospital nurse detailed for duty there by a welfare service. “Residing with” is something more than “living at,” even when the premises become a person's normal postal address.
So one sees a narrow construction favoured – for the policy reason that one should not give benefits to those whom one cannot fairly say were intended to be benefited by the legislation. Mr Baker prayed that consideration in aid; submitting...
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