Freeman v London Borough of Islington [2009] EWCA Civ 536

[2009] EWCA Civ 536Case No B5/2008/2401
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CLERKENWELL & SHOREDITCH
COUNTY COURT
His Honour Judge Mitchell
8ECO3794
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/06/2009
Before
THE RT HON LORD JUSTICE WALLERTHE RT HON LORD JUSTICE LONGMORETHE RT HON LORD JUSTICE JACOB
Between
Linda FreemanAppellantThe Mayor and Burgesses of theRespondentLondon Borough of IslingtonRespondent
Nicholas Isaac (instructed by Mary Ward Legal Centre) for AppellantChristopher Baker (instructed by London Borough of Islington Legal Services) for RespondentHearing Hearing date: 13 May 2009
Judgment
[1]This is an appeal from a judgment of HHJ John Mitchell of 24th 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.[2]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 …[3]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.[4]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.”[5]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.[6]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 20th June 2004.” v) The appellant’s father died just over a year later, on 30th 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 6th 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 25th 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 15th 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 1st 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.”[7]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.[8]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.[9]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.[10]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.[11]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.”[12]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: Like 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). And: 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.[13]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 that the sort of “living with” relied upon here was not what Parliament had in mind.[14]In Morgon a husband had broken up with his wife and gone to live with his mother, the tenant. His claim to succession succeeded. Winn LJ said He [the

Judge below] said again, later in the judgment:

"The important word is residing, which requires reasonably permanent residence - seven months' residence was not enough unless he gave up his own home. Had the defendant given up his home?"
In my respectful opinion, with all respect to the county court judge, that is a misdirection since a man may, in law, have more than one place in which he resides as well as more than one place in which he lives. He may have a house in London, he may have a house in the country, he may have a house in New York, he may have a house also at Florida, he may have a house in New England, and it may well be that it would be right to say of him in fact and in law that he resides in each of those places, if he spends time in them of which it can be postulated that the time which he spends there, and the intention which he has when he spends it, is more than is comprised in and directed to the paying of a temporary visit. One sees here the reference to intention. Apart from that, the case is important for saying that a person can have more than one home and still be “residing with” a tenant. "The important word is residing, which requires reasonably permanent residence - seven months' residence was not enough unless he gave up his own home. Had the defendant given up his home?"[15]Peabody is accurately summarised by Swinton Thomas J in Swanbrae so I borrow what he said: The defendant lived with her mother and stepfather in Salisbury. Her father became ill and the defendant went up to live with him for a large proportion of the week. She said in evidence, which was accepted, that she came to regard the flat in London as being “her home”. It should be noted that she did not have a home of her own. The judge found that the defendant occupied the flat as her home at the time of her father's death. He was satisfied that there was a sufficient measure of, as he put it, factual community of family living and companionship to constitute residence with the father. The Court of Appeal held that the judge had not erred in any way in the conclusions which he reached on the facts of that case.[16]Hampstead Way was a decision of the House of Lords. But since it was not concerned with the phrase “resided with” it is not directly in point so far as construction goes. A tenant under a protected tenancy could have the status of a statutory tenant when that tenancy expired “if and so long as he occupies the dwelling-house as his residence” (s.2(1) of the Rent Act 1977). I do not think the case helps here.[17]Swanbrae was a decision of a two-judge Court of Appeal. Its facts are close to those of the present case. The tenant became ill and her daughter moved in, staying a number of nights each week. The daughter retained her own house about 2 miles away where her son lived and to which her post was sent. She was held not to be “residing with” the mother.[18]Swinton Thomas J (as he then was) went to most of the passages in earlier cases I have cited. He said (of Collier): There is, in my view, an important factual distinction between that case and the present in that unlike the Colliers, Mrs Elliott does have a tenancy of her own. Furthermore, in my judgment, the words used by Sellers LJ “making their home there” are important words. Later he said: At p. 10 Winn LJ said that in his view the word “reside” was synonymous with the words “live at”. This is of course, contrary to the view expressed by Sachs LJ in Foreman v Beagley, and, if it is necessary for me to do so, and with the greatest respect, I agree with the views of Sachs LJ that “residing with” is something more than “living at.”[19]In reaching his ultimate conclusion, Swinton Thomas J said: The Oxford English Dictionary defines “reside” as “having one's home, dwell permanently.” Clearly, for reasons already canvassed, the words “reside with” in the context in which they are used in the Rent Act 1977 do not mean dwell permanently in the sense of dwell indefinitely. They certainly mean something more than dwell transiently and to my mind they have the connotation of having a settled home. A person may reside with a relevant relative for the requisite period but nonetheless have an intention to move away at some later stage. However I do think, with Sellers L.J. in Collier v. Stoneman, that the words “have one's home” are very helpful. A person may well, of course, have more than one home although he does not usually do so. As Winn L.J. said in Morgon v. Murch, a person may have more than one residence. In my view the person claiming the statutory tenancy must show that he or she has made a home at the premises which they are claiming and has become in the true sense a part of the household. In this case Mrs. Elliott had lived at 49 Wellington Road for a limited period. She did not spend all her time, by any means, at that address. She had a settled home at 4 Gainsborough Avenue. She went to 49 Wellington Road for the purpose of caring for her mother who was ill. Her son remained at Gainsborough Avenue. Having considered this case with great care during the submissions and for some period of time since, I have come to the conclusion that it was not established by Mrs. Elliott that she had made a home at 49 Wellington Road or that in any true sense she had become part of her mother's household there. Accordingly, in my judgment the judge was right to conclude that she was not residing with her mother within the meaning of the relevant paragraph.[20]He added this: Further it always has to be borne clearly in mind in a case of this nature that a judge sitting in the county court has heard all the evidence and neither the notes which he takes nor his judgment can encompass the totality of the evidence. In a case such as this, which is essentially one of fact and one of degree, the judge of first instance has an opportunity of making a judgment on the evidence which is denied to this court. Despite the formidable arguments put forward by Mr. Gallivan, I do not think it has been shown that the learned judge was wrong and I would dismiss this appeal.[21]Kerr LJ said: But the existence and continuing availability of Mrs. Elliott's “permanent” home, simultaneously with the claimed residence elsewhere, distinguishes the present case drastically on its facts from Morgon v. Murch. Such a state of affairs is bound to render it far more difficult for a defendant to satisfy the test of having “resided with” a member of his or her family for the necessary period at the same time. The reason is that “residence” must connote more than physical presence during the required period, albeit as a member of the household. This is not only consistent with the dictionary definition of “reside” which Swinton Thomas J. has cited, but also with the social purpose of the legislation. And: For want of a better word, I think that Mrs. Elliott was a visitor, a temporary resident, but without having made her home with her mother, within the ordinary and dictionary meanings of “residing with” her. Her position can hardly be put better than she did herself, entirely frankly, in her evidence, when she said:
“I moved in with my mother for so long as was necessary.”
Having regard to the existence and availability of 4 Gainsborough Avenue, to which she returned for odd days and nights throughout the six-month period, that sentence described no more than what one would usually refer to as “staying with her mother” in order to look after her. She moved in for a limited time and for a limited purpose.[22]This passage is important – mere “temporary residence” is not enough. One is looking for something which can fairly be called “homemaking.” And the retention of another home, whilst not fatal, can be a significant factor in deciding that a person was not making their home in the premises in question.[23]Crawley is not directly in point for it was not concerned with the phrase “residing with.” It was a case about whether the tenant occupied a flat as his “only or principal home” under s.81 of the Housing Act 1985. I do not think it throws any light on the key phrase with which we are concerned.[24]The final case to which I must refer is Hildebrand. Mr Isaac placed great reliance on it, saying that if the learned Judge had been shown it (he was not) he would have decided the case differently. The would-be successor was a daughter who had bought and moved into her own flat. The tenant, her mother, became ill and the daughter moved in with her. She made preparations to sell her own flat (but had not done so), and received visitors and phone calls at her mother’s. She succeeded.[25]Mann LJ said: It must, I think, be clear from the findings of the learned judge which I have recited that all objective indicia are that the appellant had made her home with her mother. Her evidence as to permanency was accepted by the learned judge. So the “homemaking” test was applied by him[26]Bingham LJ said: The learned judge did attach great importance to the fact that the appellant moved back into the house to nurse her mother, and my Lord has referred to the letter in the course of which the appellant said, writing in December 1986:
“I moved back in to help nurse her.”
There is, however, in my judgment, no reason why the fact that the daughter returns to her mother's house to help nurse her should lead to the conclusion that the daughter does not from the moment of moving back thereafter reside with her mother. It would, of course, be entirely different if she came back, rather like a professional nurse, to do a job but with the intention of leaving as soon as the job was done.[27]This is an important passage. It recognises the importance of considering the would-be successor’s intention. It shows that an intention to live with the tenant to nurse him/her does not preclude “residing with” but on the other hand is not conclusive of it. And it shows that one does look to the intention after death of the tenant – to throw light on the nature of the occupation pre-death.[28]The authorities also clearly establish that mere physical presence is not enough to amount to “residing with”. There must be to a significant degree an intention which can be characterised as making a home with the tenant – not just staying there.[29]Moreover – and this was not in dispute – the nature of the occupation must have the necessary qualities of “residing with” for the whole year before the death.[30]With that review of the authorities, I can turn to the present case. Mr Isaac argued first that the Judge had misdirected himself and alternatively that he had reached a conclusion which could not reasonably be reached (perversity). He was right in perceiving that he needed one of these two routes to succeed on appeal. For the question of “residence with” is one of fact and degree, and it is not good enough merely to invite this Court to assess the facts and degree differently from the way it was done by the judge below – see generally per Clarke LJ as he then was in Assicurazione Generali v Arab Insurance Group [2002] EWCA Civ 1642; [2003] 1 WLR 577 at [12-23] in a passage approved in the House of Lords in Datec Electronic Holdings v UPS [2007] 1 WLR 1325. And in relation to the particular phrase under consideration here, see the concluding words of Swinton Thomas J’s judgment in Swanbrae quoted above.[31]So did the Judge misdirect himself? Mr Isaac suggested he did so in two ways. First he drew our attention to paragraph 14 of the Judgment where the Judge said: To “reside at” means more than “living at” as Sachs LJ said in Foreman. In fact Sachs LJ said "residing with" is something more than "living at," (see quotation above). Mr Isaac drew attention to the substitution of “at” for “with”. He submitted in effect that “residing at” imposed a higher test than “residing with” and so the judge had applied the wrong test.[32]I do not agree for two reasons. First I do not think there is any significant difference between “at” and “with” – the difference in language is just the sort of slip one may make in giving an ex tempore judgment which this one was. (The misattribution of some quotations is a similar slip, for instance the passage in [14] said to be a quotation from Swinton Thomas LJ is in fact a quotation from Winn LJ). Secondly, and even more importantly, the Judge correctly set out the precise statutory language when, having found that the appellant was physically living in the subject premises for seven days a week by 20th June 2004, he went on to consider whether there was the “residence with”. He said: [42] The question is, however, was she residing with her father for the 12 months prior to his death? I recognise that there can be no bright line drawn where on one side she was not living there or residing there and at another stage she was. In practice, there would be likely to be a gradual increase in the number of days and it may have been a gradual change in how she viewed the matter. But a number of matters are, in my judgment, important. That was an entirely correct legal approach, given the authorities I have cited.[33]The alternative suggested misdirection in law is that the Judge applied a “settled home” or “settled intention” test. This, it was suggested, was wrong in law. His reasoning went like this: [43] There was, first, the vagueness in her letter of 1st August about when she moved in. It cannot be entirely explained, in my judgment, by her dyslexia. The second matter is that Flat 3 was not let until June 2005. Before then, much more informal arrangements were being made, which had meant that she could move back in there. Third, the continuing payment of the utility bills is consistent with her maintaining the property for her return. Fourth, her other correspondence continued to be sent to Lordship Park. The billing address for the credit card, for reasons I have already explained, had to be changed. That is consistent with her living most nights, if not seven nights a week, with her father. It is not necessarily proof that she was residing there. Next, her father did not, for whatever reason, regard her as residing with him in July 2004 when he completed the housing benefit form. There was also the uncertainty that she had about how long her father’s illness would last. Furthermore, there was uncertainty about whether or not she would be able to succeed to his tenancy. There is nothing other than the credit card which indicates that she had formed the intention of having her settled home with her father and, as I have indicated, the credit card does not conclusively prove the matter. [44] Having regard to all the evidence, I am not satisfied that Ms Freeman did reside with her father from 25th June 2004. I go further. I am satisfied that she did not reside with him for the totality of the 12 months prior to his death, although at some stage, probably in May or June 2005, she may have emotionally decided it was her home. Until then, there was such a degree of uncertainty about how long he would be able to continue to live there was, in my judgment, no settled intention.” But Swinton Thomas J’s used the phrase “settled home” The Judge was doing no more than applying a home-making intention, something more than a staying with the tenant “for a limited time and for a limited purpose” to use Kerr LJ’s phrase. That was entirely in accordance with the authorities.[34]Moreover I cannot see that Hildebrand assists the appellant. To the contrary. Mann LJ applied the “made her home” test. And Bingham LJ thought that a mere coming back to do a job with the intention of leaving when it was over, would not count as “residing with”. In this case there is nothing to show that the appellant, at least until she let her flat was doing more than fulfilling her natural duty to him – she was there to tend and look after, not to make the flat her home.[35]I turn to the perversity argument. Mr Isaac submitted that the Judge was wrong to rely on the letter of 1st August 2005 about when she moved in (“earlier this year”). He said the letter was irrelevant given the finding that the appellant was staying with her father full time by 20th June 2004. I do not agree – the Judge saw and heard the appellant. He was entitled to form view that this letter was evidence of her state of mind as to when she had truly moved in.[36]The remaining matters referred to by the Judge seem to me entirely proper considerations. Mr Isaac’ main point about them was that no Judge, properly directing himself, could conclude otherwise than that the appellant was “residing with” her father – they were consistent merely with the appellant having two homes. Again I do not agree – once one accepts the interpretation of “residing with” involving more than merely staying with, and that intention matters, these are all relevant factors.[37]So I conclude that the Judge’s reasoning cannot be faulted and I would dismiss this appeal.[38]Accordingly it is not necessary to consider Mr Baker’s Respondents’ notice point about “principal or only home”. I would only say two things about it. First that it necessarily is concerned only with the facts at the time of death (unlike “reside with”). By then, having let her flat, the appellant had nowhere to go, so it was hardly unreasonable for the Judge to find that her father’s flat was her only home at that time. Secondly it is the same sort of question as “residing with” in the sense that this Court will interfere only if there is a misdirection in law or perversity. Mr Baker recognised that which is why in end the point was advanced so tentatively and on the basis that it only arose if we were going to reverse the main finding of the Judge.[39]I agree with both judgments of my Lords.[40]It seems to me that the test can be encapsulated by considering whether the appellant could fairly say when being asked to leave the premises after the death of her father- "But it is my home and it has been for 12 months". On the facts as found by the judge the appellant could say "It was her home", but not for the whole period of 12 months. I agree for the reasons given by Jacob LJ that the appeal should be dismissed.