ON APPEAL FROM Clerkenwell & Shoreditch County Court
His Honour Judge Matheson
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
LORD JUSTICE PATTEN
| The Mayor and Burgesses of The London Borough of Islington
|- and -
|Boyle & Anr
Mr Matt Hutchings (instructed by Harter & Loveless Solicitors) for the Respondent
Hearing dates : 8th November 2011
Crown Copyright ©
Lord Justice Etherton :
"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."
17. Daniel began to become aggressive to the girls. It was in 2004 I think when I went into the bedroom one day and found that Daniel was strangling Jamey. Jamey was about 7 years old at the time. I feared that if I had not come into the room Daniel might have killed her. Daniel had also started rubbing himself up against the girls in a sexual way. They did not like this and I did not like it either. I said to Paul that I was going to take the girls and leave… It was as a consequence of my saying that I had to leave with the girls because the girls could not live with Daniel and I felt I could not cope with Daniel any more, that Paul suggested going to the house in Suffolk. Paul's understanding is that this was only going to be for the summer of 2004. However I think that I always intended to go up for about 6 months respite from caring for Daniel and to take the girls away from Daniel... I took the girls out of school in London and registered them at Glemsford School initially for a period of 6 months from September 2004.
18. … Paul was caring for Daniel full time and Daniel spent all day at Treehouse School which was also very good for him.
19. From the beginning of the time I was in Suffolk Paul and I always talked about when I would come back to London. We used to discuss how long Daniel would have to be at Treehouse. I believed he would leave at 16, not 18. I always thought I would come back to London when Daniel was 16 and had left Treehouse. (Daniel will be 16 on 16 June 2010). We also had discussions about other arrangements. One was my living in London with Daniel. However there was no school bus to Treehouse and I do not drive. We discussed Daniel living in Suffolk with Paul but attending Treehouse School. However the journey would have been too difficult. All of our discussions were based on the assumption that I would come back to live in London when this became possible.
20. I always thought that I would come back to London and live in my flat. I did not know when. However I always viewed the flat in London as mine. I always viewed the house in Suffolk as Paul's and that I was just staying there. All of the furniture in the house in Suffolk is Paul's. My furniture remained in my flat in London. Because Paul knew that I was unhappy living in Suffolk, he looked into trying to get the train or get a motorbike and come down to London every day with Daniel. However we realised that this was impossible. I wanted to be in London but I couldn't be in London. I used to refer to the house in Suffolk as a "prison". I frequently said this to Paul. I was away from my friends and family. I was unhappy about this.
21. The flat in London was still mine as far as I was concerned. The only things I took to Suffolk were my books, photos, clothes and music. Paul and I did not exchange any furniture. My bed remained in the flat, my living room furniture (settee, arm chair, desk, desk chair, trampoline, T.V., video, DVD, T.V. stand and washing machine) remained. My fridge and my cooker remained. Daniel's bed remained although he subsequently bought a new bed. The furniture in the house in Suffolk was all Paul's. This did not change at any time.
24. I suppose I used to think that I might have to continue with the arrangement that we had until Daniel was 16 years old when he would leave Treehouse School. I thought that at least by then I would be able to go back to my flat. The girls would be 13 and 12 by then. Paul was not in my mind. I thought that Daniel would likely have to be living in a residential situation by then. In my head I felt that "the madness would end". That is how I felt in my unhappiness and while I was drinking too much. Although I am the mother of 3 children and I do not want to have a relationship with Paul, I need Paul in order to look after Daniel. I therefore see it that I have to put up with Paul.
26. In Suffolk the girls had their own bedrooms. They went to a school where there were only 50 children. This was a county school in Glemsford. The girls liked it. However I was very unhappy. After 6 months the girls' teacher asked what we were doing. I did not know what to do and we extended the arrangement for 6 months. The girls moved to a school in Cavendish, Suffolk. The girls were happy. However I was not. I had no friends in Suffolk. I do not get on with Paul's mum. … I became unhappy and started drinking again. I felt I was sinking.
27. … I missed my mum who lives in Ronalds Road, London N5, round the corner from my flat. My sister also lives in Ronalds Road with my mother. I missed London. I hated the village mentality...
33. …. I was away from my friends and family. I resented Paul for getting me to move to Suffolk. That is how I began to see it. It had been Paul's idea that I go and live in the house in Suffolk. The problem was that the girls wanted to stay on in Suffolk. Paul wanted to stay in London with Daniel so that Daniel could attend Treehouse School. It had always been Paul's paramount concern that Daniel stay at Treehouse School. Paul and I do not feel exactly the same about this. I originally felt in 2004 that this was the most important thing, that Daniel stay at Treehouse School, and that we should therefore try to do everything necessary for this to be a reality. However, by the beginning of January 2008, when I had started my recovery from alcohol, I realised that Daniel being at Treehouse was not the only thing that was important. I needed to help myself….
35. Paul lost his job in July 2008. I saw this as an opportunity to change our situation. I now saw my rehabilitation as my primary need. I had become an alcoholic again. I had to stop this. Daniel being at Treehouse was not the only important thing. After a lot of discussion Paul agreed that Daniel would be taken out of Treehouse School and would go with Paul to Suffolk. I returned to live in my flat on 22 September 2008. The house in Suffolk has 4 bedrooms so the girls do not have to share with Daniel. Daniel sleeps in the same room as Paul. Paul has a double bed in that room and Daniel has a single bed.
40. The arrangement of me staying in Suffolk with the girls and Daniel remaining in London to go to Treehouse School, living in my flat cared for by Paul, was an arrangement brought about by our circumstances. This arrangement was never intended to be permanent. I never had any intention of abandoning my flat or giving my flat permanently to Paul. I have always viewed it that my son Daniel lived in my flat in order to attend Treehouse School and that he was cared for by Paul. It remained my flat.
41. Everything we did was done to try to provide as best we could for the needs for our children."
"28. 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.
29. 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."
"43. In cross examination Ms Boyle insisted that it was "100% incorrect to say that when I moved in 2004 I intended not to return". She added that she had been back for 18 months and intended to stay in the flat. Her family and friends, she said, live near by and indeed she called witnesses to confirm this. One was Nichola Boyle who is her sister and who lives in Highbury only about ¼ mile from Avenell mansions and who said that between 2004 and 2008 she frequently saw Donna Boyle who regularly visited her house with Jamey and Billie. She said that they had frequent conversations about Donna returning to London: no specific dates were mentioned but she always said that she would return when the girls settled and she could look after Daniel."
"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 sitruation"
"64. I accept that Ms Boyle intended at some future date to return to the flat in Avenell Mansions. When that would be she did not know but that was her long term intention. She may well have changed her mind or wavered at times, as I think she did, but that was her long term intention. The question which arises is how that long term and necessarily somewhat unspecific, in terms of time and circumstances, intention fits in with the authorities to which I have already referred."
"67. 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.
68. 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….
70. My conclusion is that weighing up all these considerations and factors and taking into account all the circumstances which I have sought to describe Ms Boyle remained, and remains now, a secure tenant of 27 Avenell Mansions. I so hold."
"14. The fact is that Ms Boyle succeeded in the action brought against her by Islington and which was prosecuted with some vigour and determination and my view is that she is entitled to recover her costs of the proceedings.
15. I have thought about whether it would be appropriate to make separate orders as to costs in respect of different issues or aspects of the litigation and have come to the view that it would not. Accordingly, my conclusion is that Ms Boyle should have an order that Islington must pay her costs, those costs to be subject to a detailed assessment if not agreed."
The Respondent's Notice
"30.— Rights concerning home where one spouse or civil partner has no estate, etc.
(1) This section applies if—
(a) one spouse or civil partner ("A") is entitled to occupy a dwelling-house by virtue of—
(i) a beneficial estate or interest or contract; or
(ii) any enactment giving A the right to remain in occupation; and
(b) the other spouse or civil partner ("B") is not so entitled.
(4) B's occupation by virtue of this section—
(b) if B occupies the dwelling-house as B's only or principal home, is to be treated, for the purposes of the Housing Act 1985 … as occupation by A as A's only or principal home."
"(13) So long as the order remains in force, subsections (3) to (6) of section 30 apply in relation to the applicant—
(a) as if he were B (the person entitled to occupy the dwelling-house by virtue of that section); and
(b) as if the respondent were A (the person entitled as mentioned in subsection (1)(a) of that section)."
"We are of opinion that a "non-occupying" tenant prima facie forfeits his status as a statutory tenant. But what is meant by "non-occupying"? The term clearly cannot cover every tenant who, for however short a time, or however necessary a purpose, or with whatever intention as regards returning, absents himself from the demised premises. To retain possession or occupation for the purpose of retaining protection the tenant cannot be compelled to spend twenty-four hours in all weathers under his own roof for three hundred and sixty-five days in the year. Clearly, for instance, the tenant of a London house who spends his week-ends in the country or his long vacation in Scotland does not necessarily cease to be in occupation. Nevertheless, absence may be sufficiently prolonged or unintermittent to compel the inference, prima facie, of a cesser of possession or occupation. The question is one of fact and of degree. Assume an absence sufficiently prolonged to have this effect: The legal result seems to us to be as follows: (1.) The onus is then on the tenant to repel the presumption that his possession has ceased. (2.) In order to repel it he must at all events establish a de facto intention on his part to return after his absence. (3.) But we are of opinion that neither in principle nor on the authorities can this be enough. To suppose that he can absent himself for five or ten years or more and retain possession and his protected status simply by proving an inward intention to return after so protracted an absence would be to frustrate the spirit and policy of the Acts, as affirmed in Keeves v. Dean and Skinner v. Geary. (4.) Notwithstanding an absence so protracted the authorities suggest that its effect may be averted if he couples and clothes his inward intention with some formal, outward, and visible sign of it; that is, instals in the premises some caretaker or representative, be it a relative or not, with the status of a licensee and with the function of preserving the premises for his own ultimate home-coming. There will then, at all events, be someone to profit by the housing accommodation involved, which will not stand empty. It may be that the same result can be secured by leaving on the premises, as a deliberate symbol of continued occupation, furniture; though we are not clear that this was necessary to the decision in Brown v. Draper. Apart from authority, in principle, possession in fact (for it is with possession in fact and not with possession in law that we are here concerned) requires not merely an "animus possidendi" but a "corpus possessionis," namely, some visible state of affairs in which the animus possidendi finds expression. (5.) If the caretaker (to use that term for short) leaves or the furniture is removed from the premises, otherwise than quite temporarily, we are of opinion that the protection, artificially prolonged by their presence, ceases, whether the tenant wills or desires such removal or not. A man's possession of a wild bird, which he keeps in a cage, ceases if it escapes, notwithstanding that his desire to retain possession of it continues and that its escape is contrary thereto. We do not think in this connexion that it is open to the plaintiff to rely on the fact of his imprisonment as preventing him from taking steps to assert possession by visible action. The plaintiff, it is true, had not intended to go to prison; he committed intentionally the felonious act which in the events which have happened, landed him there; and thereby put it out of his power to assert possession by visible acts after March 9, 1946. He cannot, in these circumstances, we feel, be in a better position than if his absence and inaction had been voluntary."
"I think there must be evidence of something more than a vague wish to return. It must be a real hope coupled with the practicable possibility of its fulfilment within a reasonable time."
"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."
" 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 …"
"24. 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."
"26. That seems to me to have been the approach adopted here by the learned judge, insofar as one can rely on the very brief note taken of his judgment. He seems to have found, in effect, that despite Mrs Clarke's statement, as embodied in the note of January 14, 1999 it was always her intention to return home to 11 Bryony Road. That finding only reads in a consistent way with the rest of the judgment if he were regarding the note of January 14, 1999 as reflecting merely a very short lived intention on her part, one which did not reflect her more general and enduring intent. …"
"authority for the proposition that if Ms Boyle had an intention to return to Avenell Mansions at some time in the future … 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."
Lord Justice Patten
Lord Justice Mummery