England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CROYDON COUNTY COURT
(HIS HONOUR JUDGE ELLIS)

		Royal Courts of Justice Strand, London, WC2A 2LL
		30 May 2012

Lord Justice Ward:

1. . On 11 November 2011 HHJ Ellis, sitting at the Croydon County Court, ordered the appellant, Mr Anthony Brand, to give up possession of a flat at 56A Albert Road in South Norwood to the landlord, Amicus Horizon Ltd, the respondent to this appeal. That flat had been let to Miss Judy Mabbott on 1 June 1998 on an assured weekly periodic tenancy. Miss Mabbott died on 13 September 2010. The appellant claims that on her death the tenancy vested in him by virtue of section 17 of the Housing Act 1988. Section 17 provides that,

"1 In any case where -

(a) the sole tenant under an assured periodic tenancy dies, and

(b) immediately before the death, the tenant's spouse (or civil partner) was occupying the dwelling house as his or her only or principal home, and

(c) the tenant was not himself a successor as defined in (ii) or (iii) below

then, on the death, the tenancy vests by virtue of this section in the spouse [or civil partner] (and, accordingly, does not devolve under the tenant's will or intestacy)."

2. . Miss Mabbot satisfied conditions (a) and (c), so the issue for the judge and the issue in this appeal is whether immediately before her death (1) the appellant was her spouse as defined in section 17(4) of the Act, that is to say whether he was "a person who was living with the tenant as her husband" and (2) whether he was at that time occupying the flat as his only or principal home. The Act has since been amended but not in any way which affects this appeal.
3. . Judge Ellis found that he satisfied neither requirement, the burden of proof being on him.
4. . The critical facts found expressly or by implication are these. (1) When the tenancy was granted to Miss Mabbot in June 1998 the only other person identified as living at the property with her was her daughter, Heleana, who was born on 7 November 1997, now aged 14. (2) The appellant met Miss Mabbot towards the end of 2000 and about a month later they began a relationship which led to his spending nights with her in her flat. At other times he slept at his parents' home at 1 Brierley Close, which was but a short distance from Miss Mabbot. He explained in evidence that there were occasions when his father misbehaved towards his mother and because of the difficulties and tensions between them he went round to stay occasionally to give support to his mother. He said that happened from time to time, something like two nights a week, and his mother confirmed that he did not stay any longer than two nights at a time. Heleana confirmed that he lived in the same house with her mother "almost all of the time" but would sometimes go and live or spend a night with his mother. The judge found at paragraph 22:

"But the overall picture given by the defendant and his witnesses is that he was in a relationship with Miss Mabbott. Since the end of 2010 he was living in her flat. He spent almost every night there but there were times when he did go and stay at his mother's house."

5. . (3) It appears that Miss Mabbott had had a troubled life and the appellant explained that she had had difficult relationships with men in the past so that she was reluctant to let another man destroy her life. She had had a hard time and she was going to be independent. Thus the judge found:

"It does, however, seem to me that there is evidence that shows that Mr Brand was right in understanding that Miss Mabbott was keen to preserve her independence."

6. . (4) There was evidence to support that Miss Mabbott had completed forms for the purpose of securing housing benefit. The form required her to provide details of her partner and list household numbers. When completing the forms in August 2001 – by which time the appellant had been living with her in her flat for some nine months or so – she did not describe him in the form as her partner. Indeed, she did not even list him as being a member of the household. The form was completed in a similar way in June 2002 and April 2003. The judge found at paragraph 30:

"It does seem to me that the inference to draw from those documents is that Miss Mabbott was demonstrating what Mr Brand had understood her position to be, namely that whilst prepared to enter into a relationship with him, she wished to preserve her independence. It seems to me otherwise she would either, in the 2001 form or in one of the later forms, have said that he was her partner and put him down as a member of the household."

7. . He added at paragraph 31:

"There are certainly no later documents which demonstrate any change of Miss Mabbott's intention after 2003; indeed there is no oral evidence from Mr Brand himself to indicate that there came a stage when Miss Mabbott made it clear that, because their relationship had developed in a particular way, she no longer wished to maintain her independence."

8. . (5) There are two documents relating to Mr Brand and his claiming job seekers' allowance, one for 2002 and one for 2003, which themselves made no mention of Miss Mabbott being his partner. (6) There was, however, a Post Office account in Miss Mabbott's name which revealed that in 2009 Mr Brand was paying his job seekers' allowance into that account from which cash was withdrawn for the purpose, said Mr Brand, of buying groceries and household goods. He used that account because at the time he had no bank account of his own. When he did acquire a passport and was able to open an account with Barclays Bank in June 2010 he gave his address as 1 Brierley Close, his mother's address. The judge observed in paragraph 31:

"That is, on the face of it, odd if the true situation was that he was living as Miss Mabbott's husband at 56A Albert Road. When asked about that, Mr Brand said: 'Miss Mabbot wanted it that way. She did not want me using her address for business correspondence'."

9. . (7) Heleana's father gave evidence in support of the appellant's case and from that evidence and all the witnesses it was clear that the appellant regarded Heleana as his daughter and thus the judge was satisfied that the relationship between Mr Brand and Heleana was, as he said in paragraph 17:

"…akin to step-father and step-daughter. He supported her in the sense of helping her with her schoolwork, and he helped care for her, and he became an important person in her life. She made it quite clear that her understanding was that he would always be there for her. Mr Phillips [that is Heleana's father] essentially confirms the closeness of that relationship between Mr Brand and Heleana."

10. . The judge also observed in paragraph 26 that Mr Brand:

"…went on to say that in his view she did consider him as her partner and it was only because of that that she let him get involved in the way he did with her daughter."

11. . The vicar of the local parish church and a neighbour also confirmed that Mr Brand and Miss Mabbott were in a relationship together but they were not privy to the precise arrangements and were not in a position to give any insight into the intentions of the parties with regard to their relationship.
12. . (8) Miss Mabbott died in circumstances which were unexplained but which led to the police having to investigate. I need not detail more about the causes for their need to investigate. The judge found that the investigating police officer's evidence was of great significance. The appellant told the police officer that his address was 1 Brierley Close and, as the judge observed:

"It is odd, if he really was in a relationship of husband and wife with Miss Mabbott, that he did not give the address of 56A Albert Road."

13. . The judge found it surprising that the appellant should have explained that the reason that he said what he did to the police was that he was concerned that he would have got into trouble for claiming benefits as a single person and not as a couple. In a witness statement made for the police that day – the day of her death – Mr Brand said that, "On Monday 13 September 2010 I was at my partner's address having spent the night". The judge said at paragraph 36:

"Again, it seems to me that the claimants are writing their argument that it is very strange that Mr Brand should express himself in that way if the true situation, as he believed it to be at the time, was that not only was Miss Mabbott his partner but he was living permanently at her address. One would have expected him to say in those circumstances simply: 'On that day I was at home', the home being 56A Albert Road."

14. . (9) Mr Brand attended the landlord's office on 28 October to claim succession to the tenancy. He said he was the deceased's partner but he went on to say that he lived with her for three days a week so as not to have an impact on her benefits and that he lived with his mother for the remaining four days. At the end the judge found it:

"…very odd in the circumstances that he should have expressed himself in that way and not simply explained he was living with Miss Mabbott in a way that amounted to him being her husband if that was the truth of the situation. I do not think he did tell the truth that day. It does not help his case, but equally it does not destroy his case, the fact that he did not tell the truth about that, but the rest of his evidence does indicate to me on the balance of probabilities that he was, in fact, spending more than three days a week residing at Miss Mabbott's home, and so I find that he did not, for whatever reason, tell the truth that day."

15. . Those being the salient facts, it was against that background that the judge reached his conclusions in paragraphs 37 and 38:

"37 I have come to the conclusion in the end that the explanation for Mr Brand saying what he did to the police and then to the claimants was that, as he indicated in his original defence, he recognised from the beginning that Miss Mabbott wanted to maintain a degree of independence because of her previous bad experience in relationships, and he was prepared to accept that both at the beginning and right through the relationship. That did not stop him from forming a close relationship with her, a loving relationship with her; it did not stop him helping and acting as a father figure for Heleana. But he recognised that wish and intention on the part of Miss Mabbott, and it is for that reason that he arranged for his post to be sent to Brierley Close and, when he was asked about his address, he gave Brierley Close as his address.

38 For those reasons, I have come to the conclusion that the claimants are right. The defendant Mr Brand has not discharged the burden that is upon him of showing that the relationship that he was in with Miss Mabbott was one of mutual lifetime commitment and was openly and unequivocally displayed to the outside world. It was certainly an important and lasting relationship but they, in my judgment, on the evidence, were not living together as husband and wife."

16. . This is a sad case, not only for Mr Brand but for Heleana. Nevertheless, despite the sustained and very persuasive argument of Ms Angela Jack for the appellant, I cannot for my part see that the judge misdirected himself in any way at all. He reached conclusions which were open to him and I cannot see that he as wrong. One does not have to spend too much time in the Family Division to realise that husbands and wives live their married lives in many and various way, yet always at its heart marriage is a serious but public commitment to have and to hold the other as one's husband or one's wife and in whatever religious or civil form the promises are made, in essence always to love and to cherish until death us do part. A married couple share their lives and make their home together. They bear equal responsibilities for bringing up their children. They offer each other love, commitment and support. Lord Nicholls of Birkenhead spoke of the "intimate mutual love and affection and long term commitment that typically characterise the relationship of husband and wife" (Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 at page 24, and Lord Slynn of Hadley said at page 38:

"The hall marks of the relationship were essentially that there should be a degree of mutual inter-dependence, of the sharing of lives, of caring and love, of commitment and support."

17. . In Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557 Lord Millett said paragraph 79:

"Another basic feature of marriage is that it is an openly acknowledged relationship. From the earliest times marriage has involved a public commitment by the parties to each other. Whether attended by elaborate ceremonial or relatively informal, and whether religious or secular, its essence consists of a public acknowledgment of mutual commitment. Even primitive societies demand this, because the relationship does not concern only the immediate parties to it. The law may enable them to dispense with formalities, but not with public commitment."

18. . Baroness Hale of Richmond said at paragraph 139 in a passage upon which Miss Jack relies:

"Working out whether a particular couple are or were in such a relationship is not always easy. It is a matter of judgement in which several factors are taken into account. Holding themselves out as married is one of these, and if a heterosexual couple do so, it is likely that they will be held to be living together as such. But it is not a pre-requisite in the other private and public law contexts and I see no reason why it should be in this one. What matters most is the essential quality of the relationship, its marriage-like intimacy, stability, and social and financial inter-dependence."

19. . At paragraph 142 she said:

"Some people, whether heterosexual or homosexual, may be satisfied with casual or transient relationships. But most human beings eventually want more than that. They want love. And with love they often want not only the warmth but also the sense of belonging to one another which is the essence of being a couple. And many couples also come to want the stability and permanence which go with sharing a home and a life together, with or without the children who for many people go to make a family."

20. . In Nutting v Southern Housing Group [2004] EWHC 2982, [2005] HLR 25, which was an appeal to the High Court from the recorder on a succession point of the same kind as arises here, the recorder had directed himself in this way. He said, as is recorded in paragraph 9 of the judgment:

"In my judgment the relationship, to come within this subsection, cannot have a single (or even a simple) definition. Human relationships are too complex and varied for that to be the case. There are, however, indicia. I have chosen to put them by questions, which must be asked in the affirmative as follows:

(a) Have the parties openly set up home together?

(b) Is the relationship an emotional one of mutual lifetime commitment rather than simply one of convenience, friendship, companionship or the living together of lovers?

(c) Is the relationship one which has been presented to the outside world openly and unequivocally so that society considers it to be of permanent intent—the words 'till death us do part' being apposite?

(d) Do the parties have a common life together, both domestically (in relation to the household) and externally (in relation to family and friends)?

The above indicia (which may overlap) must principally be objectively assessed by reference to what the outside world can see (albeit that the domestic aspect may not be viewable without visitors) and the indicia at (b) must also be assessed by reference to the viewpoint of the parties themselves, so far as that can be ascertained on evidence. In that regard the relationship of the spouse does have some subjective element to it, but accompanying its subjectivity there must be express or implied communication of one party to the other by way of a demonstration of a lifetime emotional commitment. Whist the length of time which the relationship has been in existence is irrelevant to the above indicia, it may sometimes corroborate them or even, in appropriate cases, be of sufficient length to satisfy a court that they are satisfied that the relationship of spouse exists."

21. . As far as indicia go, it seems to me that those are certainly good enough but, as the recorder had observed, human relationships are complex and varied and thus I would not, for my part, regard that list as necessarily comprehensive; the facts are always varied and the facts must always be taken into account as they present themselves from case to case.
22. . The judge was well aware of those notions of what was required to establish whether a couple were living together as husband and wife and it seems to me that he applied them. Miss Jack, however, submits that the judge was wrong to apply a subjective test rather than an objective test and was wrong to treat Miss Mabbott's desire to maintain her independence as determinative of the question. Much as I have admired the way in which Miss Jack has presented the argument on her client's behalf, I cannot accept those submissions.
23. . In The City of Westminster v Peart [1991] 24 HLR 389 Sir Christopher Slade, with whom Staughton LJ agreed, said at page 398:

"Where the facts show that the two persons concerned had been living together without being husband and wife, the court has to decide whether the case falls within the second or third of these situations [the second being two person living together as husband and wife and the third being two persons living together not as husband and wife]. In such a context, their intentions, as demonstrated by their conduct, are, in my judgment, of great importance."

24. . Likewise in Crake v Supplementary Benefits Commission [1982] 1 All R 498 Woolf J (as he then was) observed at page 504:

"If the only reason that Mr Jones went to that house temporarily was to look after Mrs Butterworth in her state of illness and, albeit, while doing so, acted in the same way as an attentive husband would behave towards his wife who suffered an illness, this does not amount to living together as husband and wife because it was not the intention of the parties that there should be such a relationship. Looked at without knowing the reason for Mr Jones going to live there, it would appear that they were living together as husband and wife, but when the reason was known that would explain those circumstances, and once the explanation was accepted by the tribunal, as clearly as it was here, and it was a matter for them, they should have come to the conclusion that in this case para 3 did not apply."

25. . Applying those observations, with which I agree, one is driven ineluctably to the sad conclusion in this case that whereas Mr Brand and Miss Mabbott gave those who knew them – his mother, the vicar, Heleana's father, the neighbours – the impression that this relationship was "important and lasting" as the judge found it was, yet Miss Mabbott could not commit herself to it. It is not so much a case of her cherishing financial independence as it is of her failure to commit herself to accept Mr Brand wholeheartedly as her partner with whom she was prepared to share her life. He had to accept that fact, no doubt ruefully. The admirable way in which he devoted himself to Heleana is evidence of his desire to be a step parent but even if, as I assume, Miss Mabbott was grateful for his doing so – as indeed Heleana's father was – nonetheless she did not accept him as if he were her husband. Just as she was claiming housing benefit without reference to his share in the accommodation, so, too, he was careful to claim his benefits as a single man. This was not a public affirmation of the unity which characterises man and wife.
26. . Looking at the matter both subjectively and objectively, as it seems to me the judge did in paragraph 38, the judge was correct to conclude that Mr Brand had not discharged the burden that was upon him of showing that the relationship that he was in with Miss Mabbott was one of mutual lifetime commitment and was open and unequivocally displayed to the outside world. It seems to me the judge had well in mind the objective appearance of this couple living together as the witnesses testified. However, lifting the covers of that relationship the crucial fact in this case was, as he set out in paragraph 37, that Miss Mabbott wanted to maintain a degree of independence because of her previous bad experience in relationships. She was, in other words, not prepared to commit herself in a way which characterises the commitment made by husband and wife.
27. . Miss Jacks submits that the conclusion of the judge was perverse. I am afraid that argument simply cannot run. This was a judgment in which the judge set out the relevant facts – some for and some against – and he had, as I think Lady Hale put it, a value judgment to make. His conclusion was one for him to reach; it was a conclusion which, in my judgment, was the correct one. I say that because I have a great deal of sympathy for Mr Brand who has devoted himself to the deceased and to her daughter and I would have wished to help him if I could, but I am afraid he did not discharge the burden of proof that was upon him.
28. . In the light of that conclusion the judge did not need to decide the second essential requirement which is that at the time of the death the claimant to succession was living in the property as his principal home. The judge seemed to accept in paragraph 39 that the evidence shows that Mr Brand was keeping Brierley Close as his home in recognition of the independence that Miss Mabbott wanted to preserve in their relationship. I can see a very compelling argument for concluding on the facts of this case that whereas Miss Mabbott's home was not his only home, the fact that he laid his head down there for more nights in the week than he did in his mother's home, might be a good reason for concluding that it was his principal home. However, I need not decide that because the sad conclusion on limb one is the end of this case and so I would dismiss this appeal.

Lord Justice Kitchin:

29. . I agree.

Mr Justice Norris:

30. . I also agree.

Order: Application dismissed