The Mayor and Burgesses of the London Borough of Islington v Boyle
| Jurisdiction | England & Wales |
| Judge | Lord Justice Etherton,Lord Justice Patten,Lord Justice Mummery |
| Judgment Date | 06 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1450 |
| Docket Number | Case No: B5/2011/0567/0975 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 December 2011 |
[2011] EWCA Civ 1450
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Clerkenwell & Shoreditch County Court
His Honour Judge Matheson
8EC08514
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Etherton
and
Lord Justice Patten
Case No: B5/2011/0567/0975
Mr Iain Colville (instructed by London Borough Islington) for the Appellant
Mr Matt Hutchings (instructed by Harter & Loveless Solicitors) for the Respondent
Hearing dates : 8th November 2011
Introduction
This is an appeal by the London Borough of Islington ("Islington") from two orders of His Honour Judge Matheson QC dated respectively 10 November 2010 and 16 February 2011. By the first of those orders he dismissed Islington's claim for possession of 27 Avenell Mansions, Avenell Road, London N5 1BN ("the Highbury flat"). By the second of those orders he ordered Islington to pay the costs of the First Defendant, Donna Boyle, of the action.
The Judge dismissed Islington's claim for possession because he concluded that, on the expiry of a notice to quit intended to terminate the contractual tenancy granted to her by Islington, Ms Boyle was a tenant under a secure tenancy since she occupied the Highbury flat as her principal home, notwithstanding she was living elsewhere at that time.
Secure tenancies granted by local authorities are defined and regulated by Part IV of the Housing Act 1985 ("the 1985 Act"). Section 79(1) of the 1985 Act provides that a tenancy of a dwelling let as a separate dwelling will be a secure tenancy at any time when the landlord condition and the tenant condition are satisfied. The tenant condition ("the Tenant Condition") is described in section 81 of the 1985 Act as follows:
"81. The tenant condition is that the tenant is an individual and occupies the dwelling-house as his only or principal home; or where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home."
The central issue on the appeal is whether the Judge was right to hold that Ms Boyle satisfied the Tenant Condition at the date of expiry of the notice to quit.
Factual background
In 1996 Islington granted Ms Boyle a secure tenancy of the Highbury flat. It is a two bedroom flat. She lived there with the Second Defendant, Paul Collier, in an "on-off" relationship, and their three children. Those children were their son Daniel (born on 6.6.94), and their daughters Jamey (born on 19.4.97) and Billie (born on 25.9.98).
Daniel was severely autistic and suffered from epilepsy, ectodermal dysplasia and Tourette Syndrome. In 1999 he started attending Treehouse school, a special school for autistic children in Muswell Hill, North London.
In 2004 the relationship between Ms Boyle and Mr Collier broke down, and Mr Collier moved out of the Highbury flat. He purchased 34 Fourth Avenue, Glemsford, Suffolk ("the Suffolk house"). They continued to co-parent their children.
In view of Daniel's increasingly aggressive conduct and inappropriate behaviour towards his sisters, Ms Boyle and Mr Collier decided in July 2004 that she and her daughters would move out of the Highbury flat and live in the Suffolk house, and Mr Collier would move back into the Highbury flat and care for Daniel. Mr Collier was then working in London.
The personal belongings of Ms Boyle and her daughters were moved to Suffolk. Large pieces of her furniture remained in the Highbury flat. Ms Boyle was registered with a local GP in Suffolk. Her daughters were entered into a local school. Ms Boyle initially intended the move to the Suffolk house to be a temporary one for six months, but it became prolonged.
While Ms Boyle was living in the Suffolk house she or Mr Collier, with her permission, dishonestly submitted applications for benefits on the basis that she remained living in the Highbury flat and had care of Daniel.
In August 2006 Ms Boyle applied to purchase the Highbury flat under the right-to-buy scheme pursuant to Part V of the Housing Act 1985. In the application she said that it was her only or principal home. In the event, she was unable to proceed with the purchase because neither she nor Mr Collier could raise the necessary finance.
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.
On 29 October 2007 Islington served a notice to quit on Ms Boyle. It expired on 26 November 2007.
On 22 November 2007 Mr Collier applied under the Family Law Act 1996 ("the FLA") in the Principal Registry of the Family Division for an occupation order and an order transferring Ms Boyle's tenancy to him. The application was made without notice to Islington. Ms Boyle was given informal notice. She did not oppose the application. District Judge Bowman made an occupation order and a transfer of tenancy order on the same date. The order was, in effect, an interim order, with a further hearing directed for 25 January 2008, which Islington was at liberty to attend. Permission was given to Islington to vary or discharge the order.
On 29 January 2008 Ms Boyle was interviewed regarding her benefits claims. During the interview Ms Boyle admitted she had lied in making benefits claims. She stated that she and Mr Collier had swapped homes for the sake of their children. She said that when she had been in the Suffolk house for a year she made the decision not to return to the Highbury flat. She said she had decided to stay in Suffolk with her daughters and to live apart from Mr Collier and Daniel. Following the interview Ms Boyle and Mr Collier were formally cautioned for benefits fraud.
On 28 February 2008, following a hearing with written and oral evidence but without any evidence from Ms Boyle, District Judge Cushing made an order dismissing Mr Collier's FLA application for an occupation order and a transfer of tenancy order. The District Judge's order recited that the court found that Ms Boyle was and at material times had been a secure tenant of the Highbury flat within the meaning of section 79 of the 1985 Act. At the heart of the District Judge's judgment was her concern (see [39]) that, if she made an occupation order in favour of Mr Collier, he would have two properties where he could reside, but Ms Boyle only had permission to reside in the Suffolk house for as long as Mr Collier was content to allow the arrangement to continue. The District Judge said that Ms Boyle and her daughters would be at risk of homelessness. She said ([44]) that the court should plainly not exercise its discretion to transfer the tenancy to Mr Collier since he already owned the Suffolk house.
Although Mr Collier's FLA application was dismissed, Islington appealed against the finding of DJ Cushing, reflected in the recital in her order, that Ms Boyle was the secure tenant of the Highbury flat. The appeal came before Mrs Justice Hogg on 4 July 2008. She allowed the appeal. She said ([49]) that there was insufficient evidence before DJ Cushing to make a finding that Ms Boyle had an enduring intention to return to the Highbury flat. On the other hand, Hogg J rejected ([49] to [51]) Islington's assertion that there was sufficient evidence to show that Ms Boyle had ceased to be a secure tenant. She said ([52]) that, if Islington wished to pursue its application for possession, the matter would have to be re-litigated in the County Court.
In the course of her judgment Hogg J said ([19]) that there was ample evidence for DJ Cushing to have reached the conclusion (which she did reach) that the removal of Ms Boyle and her daughters from the Highbury flat to the Suffolk house was driven by the children's needs; and ([20]) that she agreed with the District Judge that the children's needs had not changed and Ms Boyle was subject to the same pressures that led her to move and to leave Mr Collier in the Highbury flat. Hogg J referred to Ms Boyle's health problems, minor learning difficulty and simplistic way of thinking.
In July 2008 Mr Collier lost his work in London. In September 2008 Ms Boyle moved back into the Highbury flat, and Mr Collier and Daniel went to live with the two daughters in the Suffolk house. Daniel was removed from Treehouse school.
Sadly, Daniel was subsequently diagnosed with leukemia and died in September 2011.
The proceedings
On 21 October 2008 Islington issued these proceedings against Ms Boyle and Mr Collier for possession of the Highbury flat. The Particulars of Claim alleged, among other things, that she lost her security of tenure because she failed to occupy the Highbury flat as her only or principal home between 2004 and September 2008, contrary to section 81 of the 1985 Act, and she only resumed occupation after the service and expiry of the notice to quit.
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...
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