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Cite as: [2005] ScotSC 48
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Edinburgh v. Johnston, [2005] ScotSC 48 (02 August 2005)
Case Reference No: SD1569/04
JUDGMENT OF SHERIFF N M P MORRISON, QC
in the cause
CITY OF EDINBURGH COUNCIL
Pursuer
against
SUSAN JOHNSTON
Defender
EDINBURGH, 2 August 2005
The sheriff, having resumed consideration of the cause, grants decree to the pursuer for recovery of possession of the subjects at 49/2 Restalrig Square, Edinburgh and ordains the defender to flit and remove herself, family, sub-tenants and dependants (if any) with her goods and possessions from the said subjects; finds the defender liable as a legally assisted person to the pursuer in the expenses of the cause, but modifies that liability to nil.
NOTE
Introduction
1. The question in this summary cause is whether the defender succeeds to her grandmother's secured tenancy by operation of law under section 22 of the Housing (Scotland) Act 2001 as a qualified person. The only ground on which the defender could be a qualified person is that in paragraph 3 of Schedule 3 to the 2001 Act, namely -
"A member of the tenant's family aged at least 16 years where the house was the person's only or principal home at the time of the tenant's death."
2. The issue is whether her grandmother's home was the defender's "principal home" at the time of her grandmother's death. The defender led at the proof. The evidence was substantially directed to whether the defender was living in that house.
3. The grandmother, Mrs Margaret Young, became the pursuer's tenant at 49/2 Restalrig Square, Edinburgh in 1987. The tenancy was a "Scottish secure tenancy" to which the 2001 Act applied. (The addition of the word "Scottish" seems unnecessary: the tenancy could not be anything else and is subject to Scots law.) Mrs Young, a widow, died on 16 March 2004 aged 74.
4. The defender had her own tenancy at 11/12 Heriothill Terrace, in Powderhall in Edinburgh, a Link Housing property, until 12 April 2004. She gave one month's notice of termination of that tenancy on 12 March 2004. It was not argued that Mrs Young's home was ever the defender's "only" home.
The evidence
5. The defender, her sister, Nicola Johnston, and her mother, Carol-Ann Johnston, claimed in evidence that the defender had moved to her grandmother's house in the first few days of January 2004. The purpose was to look after her grandmother while she was ill. The two grand-daughters, it was claimed, knew at the end of December that their grandmother had been diagnosed with cancer. Their mother did not know of this diagnosis until the end of January.
6. In fact Dr Geoffrey Dobson, Mrs Young's general medical practitioner, said that he was not explicit with her about the nature of her illness (a cancer, the primary source of which was never identified) until 16 January 2004. At that time Dr Dobson said that Mrs Young did not want him to tell any of her daughters and did not want anyone to come to stay with her. On 27 January Dr Dobson was allowed by Mrs Young to write to Mrs Elaine Ross, one of her two daughters, who lived in Reading, to inform her of her mother's condition. Dr Dobson was unaware that Mrs Young had any relatives in Scotland, believing them all to be in England. Mrs Ross said in evidence that she contacted her sister, Carol-Ann Johnston, after she got this letter; although Mrs Johnston said her mother told her of her condition before that.
7. The defender indicated in evidence that she moved her clothes and CDs into her grandmother's house and that she left no personal possessions in her own tenancy. She returned there to collect mail, which was delivered there. Her tenancy was fully furnished accommodation; she had no furniture of her own to move. She said that she would sleep in her mother's house which was five minutes away by foot from her grandmother's house. She would go to her grandmother in the late afternoon, do the household chores, cook dinner, spend time with her grandmother, watch television and stay the night resting on the settee in the living room until her mother arrived in the morning after her shift. She moved from one general medical practice in Eyre Place to one in Restalrig in May 2004: see defender's production number 5. There were two bedrooms in her grandmother's house, one occupied by her grandmother. The bed in the spare room was standing up against the wall. The room was used as a storage room containing items stored there by her grandmother and where she herself kept her possessions. Mrs Ross was not told that the defender was staying in her grandmother's house, because if Mrs Ross knew, she would say that Mrs Young could not cope and would have to go into a hospice. The defender gave one month's notice on 12 March 2004 to quit her own tenancy on 12 April. She went to see the housing officer on 30 March 2004 about taking over her grandmother's tenancy. She was living in her grandmother's home, she said.
8. The defender's mother, Mrs Johnston, gave evidence that in March 2004 Mrs Young had said that she wanted the defender to move in with her. She said that her mother's general medical practitioner had said that she had two months to live. The defender gave up her tenancy.
9. Mrs Johnston spoke to two letters in support, namely, defender's productions numbers 1 and 3 which indicated that the defender was staying with her grandmother. The first letter was from one of Mrs Young's sisters, Mrs Sutherland, and the other was from her palliative care nurse. Neither letter I found very helpful. Mrs Sutherland stayed with Mrs Young on one weekend before Mrs Young's death; and that weekend the defender did not stay with her grandmother. The letter from the care nurse simply stated that she "was aware that she (the defender) had been spending evenings and nights caring for her grandmother". Neither author gave evidence.
10. Mrs Johnston said that Mrs Ross, her sister, had not been told that the defender was living with her grandmother because there was family friction (upon which she did not elaborate). It was agreed by her, the defender and Mrs Young that Mrs Ross would not be told. When her mother died, Mrs Johnston took the defender's possessions out of the house so that Mrs Ross would not find them there. She did not remove the defender's belongings the weekend before when Mrs Ross was staying with Mrs Young and was not concerned that Mrs Ross might find them at that time.
11. The defender's sister, Nicola, gave evidence in support of the defender and her mother, saying she visited her grandmother four or five times a week. She confirmed that she and the defender had gone to see the housing officer on 30 March 2004 to see if the defender could take over her grandmother's tenancy.
12. Mrs Ross said that she had a close relationship with her mother. This is, I think, confirmed by the fact that it was to her that Mrs Young said Dr Dobson was to write. She visited her mother every weekend after she received Dr Dobson's letter, except when her mother was in hospital in February and she herself was on holiday. That meant she visited on about six weekends before her mother died, on the last of which (13 and 14 March 2004) she slept in her mother's house. On all these occasions she saw no sign in the house of anyone other than her mother living in the house and no sign of the defender's belongings. There was no bed at all in the spare room. She said she telephoned her mother regularly during the week, morning, afternoon and evening and the phone was never answered by the defender. Mrs Ross said her mother would have told her if the defender had been living there. (Having regard to the fact that Dr Dobson's evidence confirms that Mrs Ross must have been the closest to her mother, this is probably a correct statement.) Mrs Ross said her mother was very independent and would not have wanted the defender there. Again, this is consistent with Dr Dobson's evidence and the evidence of Lindsay Stewart, the housing support worker, about Mrs Young's independence.
13. After the death of Mrs Young, the evidence was that the family cleared out her flat. Carpets were taken up, furniture arranged to be taken away or to charity, the electricity and gas meters were read and the utility companies informed. The pursuer's housing department was informed by Mrs Ross that the flat was empty, the keys would be returned and the tenancy terminated. During the clearout, Mrs Young's fridge was taken to the defender's own flat.
14. At no time during the clearout of Mrs Young's flat did the defender or her mother tell Mrs Ross that the defender was living there or indeed that she wanted the tenancy. Mrs Ross denied that she would have forced her mother into a hospice if she had known that the defender was staying there. I believe her on this point. I think it unlikely that Mrs Young would have been readily persuaded against her will having regard to her independent spirit which was spoken to in evidence. Mrs Ross said that her mother would have told the Council if anyone was staying with her as she would have had to do as the recipient of housing benefit: her mother was a very moral person. She saw no CDs lying about the house. She would have noticed these as her mother did not have a CD player herself.
15. Mrs Ross described the family friction. She and her sister, Mrs Johnston did not get on; and neither did her sister and their mother. Mrs Young had not seen the defender's mother since Easter 2003 until after Mrs Ross got Dr Dobson's letter.
16. Mrs Ross was her mother's executrix. The defender, she said, was not mentioned in Mrs Young's will, although Mrs Young changed her will the Tuesday before her death in order to include the defender's mother.
17. Gary Young, Mrs Young's son, visited her fortnightly from the end of January and would stay for about two to three hours usually in the afternoons and sometimes in the evenings. He said that he or his wife telephoned three or four times a week. The phone was never answered by the defender. He saw no signs of anyone else living in the house other than his mother. He saw no one else's belongings there. He saw the defender there sometimes and only remembers her staying one night in early February. He could think of no reason why he should not be told that the defender was living there if that was the case. His mother was very organised and would have told the Council if someone was living there. It would have gone against everything his mother had said for her to have gone into a hospice. She did not like hospices. He confirmed that nothing was said during the clearout of his mother's flat about the defender living there. He mentioned that he had been asked to take the fridge to the defender's flat but had been asked to bring it back the next day. He could not remember why, although the defender already had a fridge in her own tenancy. He confirmed that there was a period when Mrs Johnston and their mother were not talking to each other. He was aware of friction between Mrs Johnston and Mrs Ross.
18. Lindsay Stewart was Mrs Young's visiting housing support worker. She visited once a week for about two to three hours usually on a Wednesday at about 10.00 am. She met Mr Young there and towards the end of Mrs Young's life, met Mrs Johnston and the defender there. She thought she had seen the defender there on two or three occasions. Mrs Young never mentioned anybody helping her. She was not even keen on having a home help and did not have one. Lindsay Stewart saw no evidence of the defender living there and was not made aware of it. She said that support workers find it useful to have that sort of information, although it was not a requirement. If she had seen signs of anyone living there she would have asked Mrs Young about it. She had not been in the spare bedroom. She described Mrs Young as an independent woman. She said that Mrs Young managed well until the last week of her life when she was really bedridden. During the last week there was a rapid deterioration in her health.
19. Dr Dobson confirmed that it was on 11 March that Mrs Young's health took a sudden downturn. In a report dated 21 April 2005 (defender's production number 6), Dr Dobson stated that it would have been impossible for Mrs Young to care for herself without a family member living with her and that the arrangement was that the defender would stay to facilitate terminal care at home. When called to give evidence for the defender he stated that he had written that report from memory. He had since had the opportunity to examine Mrs Young's records. It would have been his advice, he said, that someone should stay with her. He would have mentioned this on 16 January 2004. She told him on that date that she did not want someone to come and stay. He had a note for the entry of 4 March 2004 that the grand-daughter was staying. This was because Mrs Johnston had told him that her daughter was staying there. He had faxed the hospice that day stating that the daughter and grand-daughter visited Mrs Young. On 11 March he saw a young woman there who he took to be the grand-daughter. He would not have been as specific as to say Mrs Young had two months to live: one would never be as accurate as that.
20. The housing officer, Avril Campbell, spoke about the defender coming into ask about taking over Mrs Young's tenancy and her conclusion that she could not because Mrs Young's home was not the defender's sole or main residence.
My conclusions on the evidence
21. I do not believe the evidence of the defender, Mrs Johnston and Nicola Johnston that the defender was living with Mrs Young at any time. If she had been, I think it inconceivable that Lindsay Stewart, a wholly independent witness, would have been totally unaware of it. I did not find the defender, her mother and Nicola Johnston credible and reliable. I did not believe their evidence that the defender was living there from early January and I do not believe their evidence that the defender was living in the grandmother's house at any time thereafter.
22. I think that the defender did no more than visit her grandmother and may have stayed overnight on occasion.
23. I do not accept the evidence that the defender was staying with her grandmother before the end of January. It is unlikely that Mrs Young would tell Dr Dobson that she did not want anyone to stay with her if the defender was already doing so. I do not believe that anyone knew about Mrs Young's diagnosis of cancer until the time that she allowed Dr Dobson to write to Mrs Ross. It is significant that the only daughter she appeared to want to communicate with was Mrs Ross, and that Dr Dobson was not asked to do so until 27 January.
24. I accept the evidence of Lindsay Stewart, Mrs Ross and Mr Young that there were no signs of anyone living in the house other than Mrs Young. It is inherently unlikely, if the spare bedroom was used as a store room, that nothing of the defender's belongings would ever have been seen in the public areas of the flat. Mrs Johnston claimed that the reason why Mrs Ross would not have seen any of the defender's possessions in the house after Mrs Young's death was because she (Mrs Johnston) had removed them. She had done this so that Mrs Ross would not discover that the defender was living there. Yet she told me that she was not worried about the possibility of Mrs Ross finding the defender's possessions in the house when Mrs Ross stayed there on the weekend of 13 and 14 March 2004. This does not make sense. If Mrs Johnston was worried about such a discovery after the death, I do not understand how she could not have been worried about such a discovery the weekend before. I do not believe Mrs Johnston's evidence on this point.
25. I accept that there was friction between Mrs Johnston and Mrs Ross, and that Mrs Ross would not be told what was going on (if anything) by Mrs Johnston. No reason or explanation was ever given, however, for Mr Young not being made aware of the defender living in Mrs Young's house, if that was the case. He did not see any evidence of the defender living in the flat. I believe him.
26. The day after Mrs Young's sudden downturn in health, the defender gave notice to terminate her own tenancy. Can it be said that this is evidence that at least from that date Mrs Young's flat became her principal home? It is beyond belief that, during the clearout of Mrs Young's flat, termination of services and termination of the tenancy, not one single mention was made by the defender or Mrs Johnston to Mr Young or Mrs Ross about the defender staying there. What possible reason could Mr Young or Mrs Ross have to object to the defender staying in the flat after Mrs Young's death or indeed the defender seeking the tenancy? I can think of no rational reason, and none was given. Then there is the evidence of the fridge being taken to the defender's own flat. Although this was not put in cross-examination to the defender, its denial was not put in cross-examination to Mrs Ross and Mr Young. I have no reason to disbelieve their evidence on this point. All this evidence, coupled with the lack of evidence of signs of the defender living in the house at any time, leads me to the inevitable conclusion that the defender was not living in Mrs Young's house at any time.
27. There was some discussion in the evidence about the dates, or absence of dates, in the two housing benefit applications that the defender completed. It appeared that the defender relied on advice from her own support worker in completing these forms. Since the defender gave one month's notice, she would be liable for one month's rent after giving notice in relation to her own tenancy. If she stated on the housing benefit form that the tenancy terminated on 12 March, she might not receive housing benefit to pay that final month's rent. I draw no conclusion adverse to the defender on the basis of what was or was not stated on her housing benefit forms.
The law and its application
28. I now turn to the law. What does "principal home" mean in paragraph 3 of Schedule 3 to the 2001 Act? In Roxburgh District Coucil -v- Collins, 1991 SLT (Sh Ct) 49, 51, Sheriff Principal Gordon Nicholson, QC stated that the test is whether the person concerned has such a real, tangible and substantial connection with the house in question rather than any other place of residence. It is not clear from where this test is derived. It has similarities in relation to the meaning of principal or habitual residence in laws on jurisdiction: for example, "substantial connection" in the meaning of residence under certain conventions by virtue of section 41 of the Civil Jurisdiction and Judgments Act 1982; and the phrase "real and substantial connection" is also familiar in the context of jurisdiction. The use of the word "substantial" has a provenance dating from the 1930s in relation to the security of tenure of tenants under the Rent Restriction Acts. There is no indication in Collins that the sheriff principal was referred to it, and I was not referred to it, but in Menzies -v- Mackay, 1938 SC 74, Lord Justice Clerk Aitchison at page 76 referred to there having to be "personal occupation in some substantial sense" and Lord Wark at page 84 referred to the requirement that occupation must "amount to substantial use". The word "connection" is used, in relation to section 30(2)(b) of the Housing Act 1980, in South Northamptonshire DC -v- Power, [1987] 3 All ER 831, 836 to which the sheriff principal was referred. The case of Collins arose under statutory law when a minimum period of residence was required. There is no reason, however, why the test in that case as to the meaning of "principal home" is any different under that law than under the current law and the decision in Collins may be said to be binding on me on that point. In any event both parties relied on the test in Collins.
29. But what is a real, tangible and substantial connection? Some guidance, it was submitted by the defender, may be derived from a quotation from Richards -v- Green, (1984) 11 HLR 1 in Monklands District Council -v- Gallagher, 2000 HousLR 112, para 37-06:-
"It is open to a tenant to have more than one home, or to be absent for perhaps a prolonged period. So long as the tenant maintains both physical signs of occupation and an intention to continue to use, or to return to use the premises as a home, the statutory tenancy may be maintained."
One must be careful, however, about this statement in Richards because the statutory provision in England (s. 2(3) of the Rent Act 1977) required that the tenant "occupies" the house as his residence. This requirement does not appear in the current Scottish legislation or the legislation in force at the time of the Monklands case. The quotation is of course from the introduction to the report written by the law reporter and does not appear in the text of the judgments of the court. Notwithstanding all that, the language used may provide a helpful pointer. There will not be a real, tangible and substantial connection unless there are signs of substantial use of the home and an intention to use the home.
30. Drawing these legal strands together, it seems to me that, if one or other or both of physical signs of using or maintaining, and an intention to use, a home are not present, it can be said that a real, tangible and substantial connection has not been established.
31. I was referred to the cases of Scottish Homes -v- Fairbairn, 2000 HousLR 114, City of Edinburgh Council -v- Baillie, 2004 HousLR 15 and East Lothian Council -v- Skeldon, 2004 HousLR 123. These cases all turned on their facts and, as was said by Sheriff Principal Nicholson in Collins, every case will turn on its own facts. I say no more about those cases.
32. There was very little discussion in evidence as to why the defender might have wanted to move her own tenancy to her mother's tenancy. She said she was happy in her own tenancy, whereas the pursuer led some hearsay evidence from Avril Campbell that there had been some problems at her own tenancy. In Collins, Sheriff Principal Nicholson said that the fact that a person might be seeking to enjoy the benefit of purchasing a property at a price below its true market value was an irrelevant consideration in determining whether a person was a "qualified person". While that may be so as a consideration of the fact of residence, it respectfully seems to me that an alleged ulterior motive might be relevant to the question of credibility of a person. If intention to use is an element, one is entitled not only to look at the facts which support it but also to consider the stated intention as a matter of credibility.
33. But Mrs Duncan, for the pursuer, did not rely on any evidence in relation to why the defender might have wanted to leave her own tenancy in challenging the defender's credibility. In this case I have to conclude that by giving notice to quit her own tenancy on 12 March 2004, four days before her grandmother died, the defender had formed the intention to move into her grandmother's home.
34. In this case I have found that the defender was at no time living in her grandmother's home. There were no physical signs of use by the defender of her grandmother's home as her home. If the giving of notice of termination of her own tenancy was an indication of an intention in the defender to use her grandmother's house as her principal home, it was not supported by physical signs of use as a home. There was no evidence of a real, tangible and substantial connection of the defender with her grandmother's home. There is no sense in which any use of the defender of her grandmother's home could be described as substantial. It is clear to me that at no time, and certainly not at the date of her grandmother's death, was her grandmother's home the principal home of the defender.
Conclusion
35. In the result, I find that the defender is not a qualified person and that the pursuer is entitled to decree for possession.
36. Mrs Duncan did not move for the decree for payment. The pursuer sought expenses if I were to grant decree for possession and the defender's solicitor accepted that the pursuer would be entitled to expenses in that event. It was pointed out, however, that the defender had a nil certificate and I was moved (under section 18 of the Legal Aid (Scotland) Act 1986) to restrict the defender's liability in expenses to nil. The pursuer's solicitor did not quibble with that. In all the circumstances, I so restrict the defender's liability.