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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2011/1450.html
Cite as: [2011] EWCA Civ 1450, [2012] PTSR 1093

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Neutral Citation Number: [2011] EWCA Civ 1450
Case No: B5/2011/0567/0975

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Clerkenwell & Shoreditch County Court
His Honour Judge Matheson
8EC08514

Royal Courts of Justice
Strand, London, WC2A 2LL
06/12/2011

B e f o r e :

LORD JUSTICE MUMMERY
LORD JUSTICE ETHERTON
and
LORD JUSTICE PATTEN

____________________

Between:
The Mayor and Burgesses of The London Borough of Islington
Appellant
- and -

Boyle & Anr
Respondent

____________________

Mr Iain Colville (instructed by London Borough Islington) for the Appellant
Mr Matt Hutchings (instructed by Harter & Loveless Solicitors) for the Respondent
Hearing dates : 8th November 2011

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Etherton :

    Introduction

  1. This is an appeal by the London Borough of Islington ("Islington") from two orders of His Honour Judge Matheson QC dated respectively 10 November 2010 and 16 February 2011. By the first of those orders he dismissed Islington's claim for possession of 27 Avenell Mansions, Avenell Road, London N5 1BN ("the Highbury flat"). By the second of those orders he ordered Islington to pay the costs of the First Defendant, Donna Boyle, of the action.
  2. The Judge dismissed Islington's claim for possession because he concluded that, on the expiry of a notice to quit intended to terminate the contractual tenancy granted to her by Islington, Ms Boyle was a tenant under a secure tenancy since she occupied the Highbury flat as her principal home, notwithstanding she was living elsewhere at that time.
  3. Secure tenancies granted by local authorities are defined and regulated by Part IV of the Housing Act 1985 ("the 1985 Act"). Section 79(1) of the 1985 Act provides that a tenancy of a dwelling let as a separate dwelling will be a secure tenancy at any time when the landlord condition and the tenant condition are satisfied. The tenant condition ("the Tenant Condition") is described in section 81 of the 1985 Act as follows:
  4. "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."
  5. The central issue on the appeal is whether the Judge was right to hold that Ms Boyle satisfied the Tenant Condition at the date of expiry of the notice to quit.
  6. Factual background

  7. In 1996 Islington granted Ms Boyle a secure tenancy of the Highbury flat. It is a two bedroom flat. She lived there with the Second Defendant, Paul Collier, in an "on-off" relationship, and their three children. Those children were their son Daniel (born on 6.6.94), and their daughters Jamey (born on 19.4.97) and Billie (born on 25.9.98).
  8. Daniel was severely autistic and suffered from epilepsy, ectodermal dysplasia and Tourette Syndrome. In 1999 he started attending Treehouse school, a special school for autistic children in Muswell Hill, North London.
  9. In 2004 the relationship between Ms Boyle and Mr Collier broke down, and Mr Collier moved out of the Highbury flat. He purchased 34 Fourth Avenue, Glemsford, Suffolk ("the Suffolk house"). They continued to co-parent their children.
  10. In view of Daniel's increasingly aggressive conduct and inappropriate behaviour towards his sisters, Ms Boyle and Mr Collier decided in July 2004 that she and her daughters would move out of the Highbury flat and live in the Suffolk house, and Mr Collier would move back into the Highbury flat and care for Daniel. Mr Collier was then working in London.
  11. The personal belongings of Ms Boyle and her daughters were moved to Suffolk. Large pieces of her furniture remained in the Highbury flat. Ms Boyle was registered with a local GP in Suffolk. Her daughters were entered into a local school. Ms Boyle initially intended the move to the Suffolk house to be a temporary one for six months, but it became prolonged.
  12. While Ms Boyle was living in the Suffolk house she or Mr Collier, with her permission, dishonestly submitted applications for benefits on the basis that she remained living in the Highbury flat and had care of Daniel.
  13. In August 2006 Ms Boyle applied to purchase the Highbury flat under the right-to-buy scheme pursuant to Part V of the Housing Act 1985. In the application she said that it was her only or principal home. In the event, she was unable to proceed with the purchase because neither she nor Mr Collier could raise the necessary finance.
  14. In January 2007 Ms Boyle and Mr Collier wrote a letter to Islington in which they acknowledged that they had not gone about matters properly in relation to the tenancy and claims for benefits. They asked permission for Mr Collier to live in the Highbury flat so that Daniel could continue to stay in London. At a meeting arranged to discuss the letter, Islington told them that it would not accept the proposed arrangement.
  15. It appears that in a telephone call with Mr Milner of Islington in October 2007 Ms Boyle was asked whether the Suffolk house was her principal home and she replied that she was living in the country then.
  16. On 29 October 2007 Islington served a notice to quit on Ms Boyle. It expired on 26 November 2007.
  17. On 22 November 2007 Mr Collier applied under the Family Law Act 1996 ("the FLA") in the Principal Registry of the Family Division for an occupation order and an order transferring Ms Boyle's tenancy to him. The application was made without notice to Islington. Ms Boyle was given informal notice. She did not oppose the application. District Judge Bowman made an occupation order and a transfer of tenancy order on the same date. The order was, in effect, an interim order, with a further hearing directed for 25 January 2008, which Islington was at liberty to attend. Permission was given to Islington to vary or discharge the order.
  18. On 29 January 2008 Ms Boyle was interviewed regarding her benefits claims. During the interview Ms Boyle admitted she had lied in making benefits claims. She stated that she and Mr Collier had swapped homes for the sake of their children. She said that when she had been in the Suffolk house for a year she made the decision not to return to the Highbury flat. She said she had decided to stay in Suffolk with her daughters and to live apart from Mr Collier and Daniel. Following the interview Ms Boyle and Mr Collier were formally cautioned for benefits fraud.
  19. On 28 February 2008, following a hearing with written and oral evidence but without any evidence from Ms Boyle, District Judge Cushing made an order dismissing Mr Collier's FLA application for an occupation order and a transfer of tenancy order. The District Judge's order recited that the court found that Ms Boyle was and at material times had been a secure tenant of the Highbury flat within the meaning of section 79 of the 1985 Act. At the heart of the District Judge's judgment was her concern (see [39]) that, if she made an occupation order in favour of Mr Collier, he would have two properties where he could reside, but Ms Boyle only had permission to reside in the Suffolk house for as long as Mr Collier was content to allow the arrangement to continue. The District Judge said that Ms Boyle and her daughters would be at risk of homelessness. She said ([44]) that the court should plainly not exercise its discretion to transfer the tenancy to Mr Collier since he already owned the Suffolk house.
  20. Although Mr Collier's FLA application was dismissed, Islington appealed against the finding of DJ Cushing, reflected in the recital in her order, that Ms Boyle was the secure tenant of the Highbury flat. The appeal came before Mrs Justice Hogg on 4 July 2008. She allowed the appeal. She said ([49]) that there was insufficient evidence before DJ Cushing to make a finding that Ms Boyle had an enduring intention to return to the Highbury flat. On the other hand, Hogg J rejected ([49] to [51]) Islington's assertion that there was sufficient evidence to show that Ms Boyle had ceased to be a secure tenant. She said ([52]) that, if Islington wished to pursue its application for possession, the matter would have to be re-litigated in the County Court.
  21. In the course of her judgment Hogg J said ([19]) that there was ample evidence for DJ Cushing to have reached the conclusion (which she did reach) that the removal of Ms Boyle and her daughters from the Highbury flat to the Suffolk house was driven by the children's needs; and ([20]) that she agreed with the District Judge that the children's needs had not changed and Ms Boyle was subject to the same pressures that led her to move and to leave Mr Collier in the Highbury flat. Hogg J referred to Ms Boyle's health problems, minor learning difficulty and simplistic way of thinking.
  22. In July 2008 Mr Collier lost his work in London. In September 2008 Ms Boyle moved back into the Highbury flat, and Mr Collier and Daniel went to live with the two daughters in the Suffolk house. Daniel was removed from Treehouse school.
  23. Sadly, Daniel was subsequently diagnosed with leukemia and died in September 2011.
  24. The proceedings

  25. On 21 October 2008 Islington issued these proceedings against Ms Boyle and Mr Collier for possession of the Highbury flat. The Particulars of Claim alleged, among other things, that she lost her security of tenure because she failed to occupy the Highbury flat as her only or principal home between 2004 and September 2008, contrary to section 81 of the 1985 Act, and she only resumed occupation after the service and expiry of the notice to quit.
  26. A Defence was served only on behalf of Ms Boyle. In it she denied, among other things, that she had ever ceased to occupy the Highbury flat as her only or principal residence since she intended to return there if and when that was possible or practicable and she did return there in September 2008; Daniel's continued attendance at Treehouse school was the overriding consideration as to where she should live; prior to moving with her daughters to the Suffolk house, Daniel had exhibited inappropriate, aggressive and sexual behaviour towards the girls, and she felt she could not cope; she nevertheless wished to return to occupy the Highbury flat; she was only a licensee in the Suffolk house; her mother and sister lived near to the Highbury flat; she was unhappy living in the Suffolk house and relapsed into alcohol dependency, and consequently she had moved back to the Highbury flat in order to prioritise her recovery; at all material times her son Daniel was occupying the Highbury flat and her furniture remained there, namely her bed, settee, fridge, cooker and television.
  27. Ms Boyle made a witness statement dated 1 December 2009. It contained the following passages:
  28. 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."
  29. Mr Collier has taken no part in these proceedings other than giving evidence on behalf of Ms Boyle at the trial.
  30. In January 2010 Ms Boyle issued an application notice for summary judgment on her Defence. That was heard over two days by the Judge in February 2010. He dismissed the application and reserved the costs.
  31. The Judgment

  32. Following a three day trial on 13-15 February 2010 the Judge handed down his judgment on 10 November 2010. The Judge described as follows the issue which he had to determine:
  33. "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."
  34. The Judge quoted passages from the judgment of Hogg J. He then summarised the evidence given at the trial. He made extensive reference to Ms Boyle's witness statement. With regard to Ms Boyle's answer to the question from Mr Milner of Islington whether she thought the Suffolk house was her principal home and her apparent answer that she was obviously living in the country, the Judge said ([41]) that he considered it "anything but plainly obvious that Ms Boyle would have understood the implications – particularly the legal implications – of that question and the answer which might be given to it".
  35. The Judge said the following with regard to Ms Boyle's cross-examination:
  36. "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."
  37. The Judge then referred to the evidence of various other witnesses who gave evidence in support of Ms Boyle, including her sister and brother, a neighbour, and Mr Collier. Mr Collier's evidence was, among many other things, that Ms Boyle had originally gone to Suffolk for six weeks respite, and there were constant discussions about her returning to London, which was her intention throughout; when he ceased to have work in London, there was a reconsideration of the situation as it affected him, Ms Boyle and their children, and it was decided that Ms Boyle should move back into the Highbury flat and he and Daniel should go to the Suffolk house; he did not want to be living in London, and the reason for him doing so was because of Daniel's problems and difficulties.
  38. The Judge then made extensive references to relevant case law on the issue whether Ms Boyle was in occupation of the Highbury flat as her only or principal home on the expiry of the notice to quit.
  39. In [61] of his judgment the Judge said he entirely agreed with Hogg J's statement that the arrangements for Mr Collier to be in London with Daniel and for Ms Boyle to be in the Suffolk house with their daughters:
  40. "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"

  41. The Judge stated his conclusion as to Ms Boyle's intention to return to the Highbury flat in [64] as follows:
  42. "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."
  43. The Judge then referred to Brown v Brash and Ambrose [1948] 2 KB 247 and Brickfield Properties Ltd v Hughes (1987) 20 HLR 108, and concluded as follows:
  44. "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."
  45. The Judge dealt with costs at a hearing on 28 February 2008. He made no separate order in relation to the costs of the summary judgment application, and simply ordered that Islington pay all Ms Boyle's costs of the proceedings. He said as follows:
  46. "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 appeal

  47. Mr Iain Colville, Islington's counsel, accepted that the Judge set out the correct legal test in [28] and [29] of his judgment. Mr Colville also accepted that the Judge was entitled to come to the conclusion that, notwithstanding that Ms Boyle was not physically living at the Highbury flat between July 2004 and September 2008, she nevertheless remained in occupation of it for the purposes of the Tenant Condition. He submitted, however, that the Judge wholly failed to address the separate issue whether, in the light of the evidence as a whole, Ms Boyle's occupation of the Highbury flat during that period, and more particularly at the expiry of the notice to quit, was occupation as her sole or principal home. He further submitted that, if the Judge had properly addressed that issue, he would have been bound to conclude that she had not occupied it as her sole or principal home at the relevant time, and so she had no security of tenure and an order for possession should be granted.
  48. On the first of those two points, Mr Colville pointed to the Judge's statement in [67] of his judgment that Brown v Brash and Ambrose and Brickfield Properties Ltd v Hughes are authority that, since Ms Boyle intended to return to the Highbury flat at some time in the future and she had left furniture there and it was being occupied by Mr Collier and Daniel, she satisfied the test for occupying the Highbury flat as her only or principal home. Mr Colville said that, on the contrary, those cases addressed only the question of continuing occupation despite the tenant's physical absence, and they did not address at all the issue whether such occupation was as the tenant's only or principal home. He said that the factual matters mentioned by the Judge in [67] only concerned the Highbury flat. There was no acknowledgment that Ms Boyle was also occupying the Suffolk house as her home, and no attempt to weigh in the balance Ms Boyle's way of life in the Suffolk house in determining which of the two properties was Ms Boyle's principal home at the date of expiry of the notice to quit.
  49. In relation to that balancing exercise, Mr Colville submitted that, since Ms Boyle was not actually living in the Highbury flat at the expiry of the notice to quit, the burden was on her to show that it nevertheless remained her sole or principal home. He submitted that the evidence could only possibly lead to one conclusion on the point, namely that the Highbury flat was neither her only nor her principal home at that time. He emphasised that Ms Boyle had said herself in her interview in January 2008 concerning her benefits fraud that she and Mr Collier had "swapped homes". She had taken her personal possessions with her. By the expiry of the notice to quit on 26 November 2007 she had been living in the Suffolk house for 3 years. Her daughters attended local schools in Suffolk. She was registered with a local GP there. Mr Colville also pointed to her statement during the telephone conversation with Mr Milner in October 2007, in answer to the question whether the Suffolk house was her principal home, that she was obviously living in the country; and her statements in the benefits fraud interview that she had decided to stay in Suffolk with her daughters. Mr Colville also said that Ms Boyle's agreement to Mr Collier's FLA application for a transfer of tenancy order was clear evidence that she did not at that time have an intention to return to the Highbury flat.
  50. Mr Colville emphasised that public housing is a scarce resource and that there had been a deliberate tightening of the conditions for statutory protection with the change of language from the residence requirement for protection under the Rent Acts (occupation of the dwelling as a residence) and the Tenant Condition in the 1985 Act (occupation of the dwelling as the sole or principal home). He took us through several of the cases, and said that what Ms Boyle had to show was not merely proof of an enduring intention to return to the Highbury flat, but that, on an objective assessment of the situation, the Highbury flat was her principal home at the date of expiry of the notice to quit.
  51. Mr Colville said that the Judge should have found that Ms Boyle's credibility, and that of Mr Collier, was severely undermined by their benefits fraud and also Ms Boyle's failure to disclose in her application to purchase the Highbury flat that she was not living there. He submitted that, even if the evidence in Ms Boyle's witness statement was accepted, on an objective assessment of her intention and actions the only possible conclusion was that the Suffolk house was her principal, if not her sole, residence; or, to put it another way, she had plainly failed to discharge the burden on her of proving that the Highbury flat was her sole or principal residence at the expiry of the notice to quit.
  52. So far as concerns the Judge's costs order on 16 February 2011, Mr Colville submitted that it was an unreasonable and irrational exercise of judicial discretion for the Judge to order Islington to pay all Ms Boyle's costs of the summary judgment application, bearing in mind that it had lasted two days and was dismissed. That was the effect of the Judge's order that Islington pay Ms Boyle's costs of the proceedings. It was impossible to contend, he submitted, that all the costs of the summary judgment application were reflected in the saving of costs in the trial of the action.
  53. The Respondent's Notice

  54. Ms Boyle has issued a Respondent's Notice in which she seeks to uphold the Judge's order dismissing the claim for possession on a further ground. As elaborated by Mr Matt Hutchings, Ms Boyle's counsel, on the hearing of the appeal, the argument is that, when the notice to quit expired, the effect of the occupation order made by DJ Bowman, which was in force at that time, was that Ms Boyle was deemed to be in occupation of the Property as her only or principal home, and so she remained a secure tenant. This is a new point, which was not raised at the trial.
  55. The point turns on the meaning and effect of section 30(4) of the FLA. Section 30, so far as relevant, is as follows:
  56. "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.
    (2) …
    (3) …
    (4) B's occupation by virtue of this section—
    (a) …
    (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."
  57. Section 36 of the FLA provides for occupation orders to be made on the application of a cohabitant or former cohabitant. Where an occupation order is made on such an application, section 36(13), provides that section 36(4) applies in the following way:
  58. "(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)."
  59. Mr Hutching's argument, quite simply, is that on 26 November 2007, when the notice to quit expired, Ms Boyle was deemed to be in occupation of the Highbury flat as her sole or principal residence by virtue of section 30(4)(b) as applied by section 36(13), and so she remained a secure tenant.
  60. Discussion

  61. There are two parts to the Tenant Condition. First, the tenant must be in occupation of the dwelling. Secondly, that occupation must be as the tenant's only or principal home. There are several well-known cases which address the circumstances in which a tenant is to be regarded as continuing in occupation of a dwelling as a home even though not actually living there. Some of them are decisions under the former Rent Restriction Acts and the Rent Acts, but the principles laid down in them are still applicable to the Tenant Condition in the 1985 Act.
  62. In Brown v Brash and Ambrose [1948] 2 KB 247 the plaintiff was granted a quarterly tenancy of a dwelling house. That contractual tenancy was terminated by a notice to quit. The plaintiff continued in occupation as a statutory tenant under the Rent Restriction Acts. The defendant was then convicted of theft and sentenced to two years' imprisonment. He left in physical possession of the premises his mistress and two illegitimate children. In due course she left, removing the children and a substantial part of the furniture. The evidence was that only three articles of domestic furniture remained in the house. The question was whether the plaintiff, on release from prison, was entitled to re-possess the house. The judgment of the Court of Appeal was given by Asquith L.J. He set out the relevant principles in the following well-known passage at pages 254–255:
  63. "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."
  64. It is to be noted that "possession" in that passage is not legal possession. As Asquith LJ explained, the Court was there concerned with "possession in fact" and not "possession in law". That is why he treated occupation and possession in his judgment as interchangeable
  65. In Tickner v Hearn [1960] 1 WLR 1406 the defendant, an elderly lady, had lived in a house "Quetta" as a statutory tenant protected by the Rent Restrictions Acts. She had lived there with her unmarried daughter. On a temporary visit to another daughter in July 1954 she was admitted to a mental hospital suffering from paranoid schizophrenia. She then remained in the hospital continuously, although by November 1959, when she was 73, she had improved sufficiently to be regraded to voluntary status and so entitled to discharge herself at short notice. Her unmarried daughter continued to maintain the Quetta house as their home. In December 1959 the plaintiff landlords instituted possession proceedings on the ground that, in view of her long absence, the defendant was no longer entitled to the protection of the Rent Restriction Acts. The only medical evidence at the trial was that of the medical superintendent of the hospital, who was called on behalf of the landlords. His evidence was that it was most unlikely that the defendant would ever leave hospital in the light of her mental state and her age. He said that she required constant psychiatric care, day and night. In cross-examination he said that there had been remarkable strides in treatment, and that developments in treatment that would help her could not be ruled out. He also gave evidence that she said many times that she regarded "Quetta" as her home and that she would like to go back there if better. The County Court judge refused to make an order for possession. The appeal by the landlords was dismissed. All the judges in the Court of Appeal emphasised that the question was one of fact and degree. Ormerod LJ said (at p. 1410):
  66. "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."
  67. The Court of Appeal considered it to be a borderline case, but concluded there was evidence on which the Judge could find, in view of the fact that the defendant had become a voluntary patient and of the advances being made in the treatment of mental illness, that she intended to return to live in the house and that it might become practicable for her to do so within a reasonable time.
  68. In Gofor Investments Ltd v Roberts [1975] 20 P&CR 366 the defendant was the statutory tenant of a flat within the Rent Act 1968. By virtue of section 3(1)(a) of that Act she only remained a statutory tenant if and so long as she occupied the dwelling as her residence. She left the flat to go abroad with her children, intending to return when her younger children had completed their education in about eight to ten years' time. Various people stayed in the flat from time to time, and some furniture remained there. The Court of Appeal upheld the County Court judge's order dismissing the landlord's claim for possession. The Court of Appeal applied the principles set out in Brown v Brash, but with the following further extension or elaboration. Cairns LJ endorsed (at pp. 369-370), as the core principle, Ormerod LJ's statement in Tickner v Hearn that there must be a real hope of return coupled with the practical possibility of its fulfilment within a reasonable time. Notwithstanding the doubt expressed by Asquith LJ on the point, Cairns LJ could see no reason why furniture alone could not be sufficient "corpus possessionis": p. 872. Further, Cairns LJ could see no reason why different considerations should apply to a period of ten years absence rather than three years: p. 371. Both Cairns LJ (p. 373) and Lawton LJ (p. 374) emphasised that the question of continuing occupation of the dwelling by the tenant, even though the tenant was not living there, is a question of fact for the trial judge in all the circumstances of the particular case. Lawton LJ warned (p.374) against "subtle distinctions … drawn by lawyers". He said (p. 375) that, where the trial judge has not misdirected himself or herself in law, the only issue is whether their findings on the evidence was so unreasonable as to be perverse.
  69. That last point of Lawton LJ, expressed in the language of more recent authority, is more accurately stated as being that the trial judge's findings of primary fact will only be overturned on appeal if they exceeded the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible; but in an appropriate case the appeal court will substitute its own conclusions as to the inferences drawn from those primary facts: Assicurazioni Generali SpA v Arab Insurance Group Practice Note [2002] EWCA Civ 1642, [2003] 1 WLR 577.
  70. In Brickfield Properties Ltd v Hughes (1987) 20 HLR 108 the defendant, who was aged 74, was the statutory tenant of a flat in London within the Rent Act 1977. By virtue of section 2(1)(a) of the 1977 Act his statutory tenancy continued only if and so long as he occupied the flat as his residence. In 1970 his wife inherited a cottage in Lancashire. It was initially used by the defendant and his wife as a holiday home, but from 1978 they remained there permanently. Between that time and March 1987 the defendant did not return to the flat in London at all and his wife made only three visits. Their adult children had remained in the London flat and, at the time of the trial, it was occupied by three of them and the defendant's son-in-law. The defendant and his wife also left furniture and books there. The plaintiff landlord sought possession of the London flat on the basis that the defendant no longer occupied it as his residence. At the trial, evidence was given that the defendant intended to return to London if his wife, who was 71 and in poor health, predeceased him, or if they were unable to manage on their own in Lancashire, which he thought might occur within about five years. The County Court judge refused to order possession. The Court of Appeal dismissed the landlord's appeal, although the two members of the court (Neill and Ralph Gibson LJJ) harboured personal doubts that they would have decided the case the same way as the judge. They held that, although the defendant's intention to return to the London flat was conditional, it was open to the judge to conclude that with advancing years the defendant and his wife would have to come back to the London flat quite soon. Neill LJ said (p. 116) that two homes cases had to be considered with particular care.
  71. There is no reason to think that the principles to be derived from those cases have any less relevance to the question whether, for the purposes of the Tenant Condition under the 1985 Act, the tenant of a dwelling let on a secure tenancy continues to occupy it as his or her home after he or she has ceased to live there and has taken up residence elsewhere. So, in Ujima Housing Association v Ansah (1997) 30 HLR 831 reference was made to Brown v Brash, Brickfield Properties v Hughes and Gopher Investments v Roberts in a decision by the Court of Appeal that the defendant's tenancy had ceased to be an assured tenancy within the Housing Act 1988 on the ground that, having sublet the dwelling, he had ceased to occupy it as his only or principal home (within section 1(1) of that Act).L
  72. I summarised the propositions to be derived from those and other cases in Amoah v London Borough of Barking & Dagenham (2001) 82 P&CR DG 6. In the light of the submissions in the present case, and further reflection, I would summarise as follows the relevant principles to be applied in determining whether a tenant continues to occupy a dwelling as his or her home, for the purposes of the 1985 Act, despite living elsewhere. First, absence by the tenant from the dwelling may be sufficiently continuous or lengthy or combined with other circumstances as to compel the inference that, on the face of it, the tenant has ceased to occupy the dwelling as his or her home. In every case, the question is one of fact and degree. Secondly, assuming the circumstances of absence are such as to give rise to that inference: (1) the onus is on the tenant to rebut the presumption that his or her occupation of the dwelling as a home has ceased; (2) in order to rebut the presumption the tenant must have an intention to return; (3) while there is no set limit to the length of absence and no requirement that the intention must be to return by a specific date or within a finite period, the tenant must be able to demonstrate a 'practical possibility' or 'a real possibility' of the fulfilment of the intention to return within a reasonable time; (4) the tenant must also show that his or her inward intention is accompanied by some formal, outward and visible sign of the intention to return, which sign must be sufficiently substantial and permanent and otherwise such that in all the circumstances it is adequate to rebut the presumption that the tenant, by being physically absent from the premises, has ceased to be in occupation of it. Thirdly, two homes cases, that is to say where the tenant has another property in which he or she voluntarily takes up full-time residence, must be viewed with particular care in order to assess whether the tenant has ceased to occupy as a home the place where he or she formerly lived. Fourthly, whether or not a tenant has ceased to occupy premises as his or her home is a question of fact. In the absence of an error of law, the trial Judge's findings of primary fact cannot be overturned on appeal unless they were perverse, in the sense that they exceeded the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible; but the appeal court may in an appropriate case substitute its own inferences drawn from those primary facts.
  73. As I have said, it is not enough to satisfy the Tenant Condition that the tenant occupies the dwelling as his or her home. The dwelling must be occupied as the tenant's only or principal home. This is plainly a tightening of the residence requirement under the Rent Act regime and prevents the possibility of the same individual enjoying statutory protection in respect of more than one dwelling. On the other hand, it is notable that the 1985 Act does not restrict protection to a case where the tenant has only one home. The restriction of the protection to the tenant's "only or principal" home envisages that the tenant may be a secure tenant of a dwelling even though it is not his or her only home. In such a case, however, the tenancy must, be a tenancy of the tenant's "principal" home.
  74. The 1985 Act gives no assistance in determining what are the characteristics of a "principal home". There are few reported cases on the point. They include the following decisions of the Court of Appeal.
  75. In Crawley BC v Sawyer (1987) 20 HLR 108 the defendant had been granted a tenancy by the plaintiff local authority in 1982. In 1985 he went to live with his girlfriend. The electricity to the premises was cut off in June 1985 and the gas in 1986. In May 1986 it was reported to the plaintiff that the premises were vacant. In July 1986 the defendant told the plaintiff that he was living with his girlfriend and that they intended to purchase her home. In August 1986 the plaintiff gave the defendant notice to quit expiring at the end September. By that time the defendant and his girlfriend had broken up. The defendant returned to the premises in October 1986. The plaintiff instituted proceedings for possession, and alleged that the defendant was not a secure tenant because he did not occupy the premises as his only or principal home. The County Court judge found that during the period that he was absent from the premises the defendant paid the rent and the rates, visited the premises once a month and at some point had spent a week there. The defendant gave evidence that he had not abandoned the premises and had every intention of returning to them. The judge found that at all times the premises were the defendant's principal home and dismissed the claim. The Court of Appeal dismissed the plaintiff's appeal. Parker LJ, with whom O'Connor LJ agreed, said (p. 102) that the trial judge was entitled to take the view that the defendant was staying with his girlfriend on a temporary basis and that the premises remained his principal home throughout.
  76. I have already mentioned Ujima Housing Association v Ansah. In that case Roch LJ, with whom Cazalet J agreed said (at p. 843):
  77. "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."
  78. In Hammersmith & Fulham LBC v Clarke (2001) 33 HLR 26 the claimant local authority had granted Mrs Clarke a secure tenancy of a house. In 1996 she suffered a severe stroke and the defendants, her grandson and his wife, moved into the house with her. In 1997 Mrs Clarke spent five months in a nursing home, after which she returned to live in the house with the defendants. By November 1998 she was suffering from a number of physical difficulties and depression and was re-admitted to the nursing home. In January 1999 Mrs Clarke signed a note prepared by a social worker which stated that she had decided to become a permanent resident of the nursing home and no longer intended to live in the house. In February 1999, relying on that note, the claimant served a notice to quit. The defendants remained in the house, and the claimant commenced possession proceedings. At the time of the trial Mrs Clarke was again living in the house. She gave evidence that she had been depressed at the time she signed the note because of difficulties with her medication. She said that she had always intended to return to the house once she was able to do so. The judge dismissed the claim on the ground that Mrs Clarke was a secure tenant. The Court of Appeal dismissed the claimant's appeal. Keene LJ, with whom Otton LJ agreed, said (p. 886) that the Court of Appeal in Crawley v Sawyer had set out the correct approach. At [23] and [24] he addressed the issue of the absent tenant's intention and the need for objective assessment. He said:
  79. "[23] 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."
  80. Keene LJ also said (p. 887) that, when considering the issue of whether a person occupied premises as his or her only or principal home, even though not living there, the court will focus not on fleeting changes of mind but on the enduring intention of that person. He said that was particularly so in cases such as that before him where the tenant was an old lady in poor health whose intentions in the nursing home may well have fluctuated from time to time and even from day to day. He said, on the facts (at [26]):
  81. "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. …"
  82. The comments of Roch LJ in Ujima Housing Association and Keene LJ in Hammersmith & Fulham LBC v Clarke about objective assessment require some clarification. Where the defendant is physically absent from the dwelling, in which the defendant formerly lived as his or her only or principal home, the defendant's intentions about living there again as the sole or principal home will be critical to the question whether the Tenant Condition is satisfied. Plainly, without that intention, the Tenant Condition cannot be satisfied. It is not sufficient, however, for the defendant merely to give oral evidence of his or her subjective belief and intention. The credibility of the defendant's evidence as to belief and intention must be assessed by reference to objectively ascertained facts.
  83. Objective assessment has, in addition, a wider application in this context. However honestly and strongly a defendant may intend to return and may regard his or her occupation of the dwelling to be as a sole or principal home, the objective facts must be consistent with the reality of continuing occupation as a sole or principal home. If objectively it is impossible fairly to describe the dwelling as being occupied as the defendant's sole or principal residence, even if legally he or she is still in occupation of it (by virtue, for example, of the presence of furniture, personal possessions or people), then the Tenant Condition is not satisfied however much the defendant may intend to live there again and believe it remains his or her sole or principal home.
  84. In carrying out that assessment of the defendant's intention and belief, and the objective reality of the situation, there is an obvious distinction between, on the one hand, the case where the defendant has voluntarily taken up long term residence in one of two or more homes which the defendant owns or has some other enforceable right to occupy, and, on the other hand, other situations. Even in the former case, of course, the position will depend on all the facts.
  85. In the light of the cases, I would summarise as follows the principles (in some cases reflecting those in [55] above) which apply to the identification of which of two or more homes of the tenant is or was the tenant's principal home. First, the length or other circumstances of the tenant's absence may raise the inference that the dwelling which is the subject of the proceedings ceased to be the tenant's principal home so as to cast on the tenant the burden of proving the contrary. Secondly, in order to rebut that presumption, it is not sufficient for the tenant to prove that at the material time it was his or her subjective intention and belief that the dwelling remained the principal home. The objective facts must bear out the reality of that belief and intention both in the sense that the intention and belief are or were genuinely held and also that the intention and belief themselves reflect reality. The reason for the absence, the length and other circumstances of the absence and (where relevant) the anticipated future duration of the absence, as well as statements and conduct of the tenant, will all be relevant to that objective assessment. Thirdly, the court's focus is on the enduring intention of the tenant, which, depending on the circumstances, may not be displaced by fleeting changes of mind. Fourthly, the issue is one of fact to be determined in the light of the evidence as a whole, and in respect of which the trial judge's findings of primary fact can only be overturned on appeal if they were perverse in the sense that I have mentioned earlier; but the appeal court may in an appropriate case substitute its own inferences drawn from those primary facts
  86. The next issue is the date at which the Tenant Condition must be satisfied. The position on that issue is clear. By virtue of the words "at any time" in section 79(1) of the 1985 Act, it is not necessary for the tenant to show that the Tenant Condition has been satisfied at all times since the grant of the tenancy. Occupiers may therefore pass in and out of secure tenant status, so that section 79(1) has (what has been described as) ambulatory effect: Basingstoke and Deane Borough Council v Plaice (1995) 27 HLR 433 (CA) at 437. Where a notice to quit has been served to terminate the contractual tenancy, the Tenant Condition must be satisfied on the expiry of the notice to quit. What happened before the expiry of the notice to quit and what happened after it may, nevertheless, throw light on whether the Tenant Condition was satisfied at the date of expiry of the notice to quit. If, for example, the tenant moved to other premises on what was intended to be a temporary basis, but for one reason or another what was intended to be temporary became a settled existence for a prolonged period such that both subjectively and objectively those premises became the tenant's principal home, the tenant's assertion that, by the time of expiry of a subsequent notice to quit, the original premises had once again become the tenant's principal home, even though the tenant was still not living there, would require very close scrutiny.
  87. I turn then to the application of those principles to the present case. The Judge examined carefully the facts and the law on the issue of whether Ms Boyle continued to occupy the Highbury flat despite her prolonged absence at the Suffolk house. The problem is that, having referred to Brown v Brash and Brickfield Properties Ltd v Hughes, he relied upon them as:
  88. "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."
  89. Those cases were indeed authority capable of supporting the Judge's conclusion on Ms Boyle's continuing occupation of the Highbury flat. That finding is not challenged on this appeal. I agree with Mr Colville, however, that they do not resolve the issue whether the Highbury flat was Ms Boyle's principal home for the purposes of satisfying the Tenant Condition. The Judge never went on to consider that issue in the light of all the facts.
  90. The question which arises, therefore, is whether we should allow the appeal and remit the case for re-trial or, as Mr Hutchings submits, we should dismiss the appeal on the footing that the Judge's conclusion was the only possible conclusion on the evidence or, as Mr Colville submits, we should allow the appeal and substitute an order for possession on the ground that the only possible conclusion on the evidence was that the Highbury flat was not Ms Boyle's sole or principal home at the material time.
  91. With some regret, in view of the additional cost, resources and time that will inevitably be involved, I consider that we must remit the case for a re-trial.
  92. I have summarised Mr Colville's powerful submissions on the evidence and his contention that the only possible conclusion, looking at the matter objectively, is that Ms Boyle has failed to discharge the burden on her of proving that, despite the fact she was no longer living at the Highbury flat at the time the notice to quit expired, it nevertheless remained her principal home. Although I accept that it would be possible for a trial judge properly to come to that conclusion, I do not accept that is the only proper conclusion to which the Judge could have arrived.
  93. It is sufficient for me to make the following points on the evidence. The identification of Ms Boyle's principal home at the date of the notice to quit, in the context of the Tenant Condition, is far from straightforward. She left the Highbury flat voluntarily in the sense that she was under no obligation or compulsion to do so. She and her daughters took their personal possessions with them. By the date of the expiry of the notice to quit she had been living in the Suffolk house for over three years with her daughters, who attended local schools. Her doctor was in Suffolk. She anticipated being there for at least a few more years until, at the earliest, Daniel finished school at 16. Some of her comments in interviews in October 2007 and January 2008 indicate that there were times before expiry of the notice to quit when she had decided to stay in Suffolk. Looking at the situation objectively, there is a powerful case that, even if she continued to occupy the London flat at the date the notice to quit expired, she was certainly not occupying it as her sole residence and nor was she occupying it as her principal residence.
  94. On the other hand, there are important factors the other way. Prior to leaving in 2004 Ms Boyle had lived in the Highbury flat for eight years. She only left the Highbury flat in the light of Daniel's behaviour, and principally its effect upon her daughters. Her written and oral evidence is clear and consistent that she always wished and intended to return to live in the Highbury flat when Daniel's situation permitted it. Her evidence was that she thought that would be when he left school at 16, which was less than two years from expiry of the notice to quit. She did not like living in the country. Her family lived in London and she wished to be near to them. Her furniture remained in the Highbury flat, just as Mr Collier's furniture remained in the Suffolk house. She retained her key to the Highbury flat, and visited it and stayed there on occasions. She often discussed with Mr Collier her desire to return to London. The evidence of other witnesses supported her evidence that she wished and intended to move back to the Highbury flat. Despite the attacks on her credibility by Mr Colville, the Judge appears to have accepted her evidence or most of it on those matters. At all events, he did not expressly reject her evidence.
  95. The Judge did not consider that any great weight should be attached to Ms Boyle's answers in the interview with Mr Milner and the interview in respect of her benefits fraud on which Islington relied as indicating her acceptance that her principal home was in Suffolk. He was of the view that, although her views may at one point or another have wavered momentarily, her enduring intention was to return to London. The Judge was entitled to take that view for the reasons he gave.
  96. Moreover, and importantly, the Highbury flat was the only property where, as a tenant, she had rights of residence. She was a bare licensee in the Suffolk house and could have been made to leave by Mr Collier, with whom she no longer had a relationship, at any time and for any reason, including (as occurred) the loss of his work in London or if it ceased to be appropriate or possible for Daniel to continue to go to school at Treehouse school. Equally, Mr Collier was in the Highbury flat as a bare licensee and could have been made to leave by Ms Boyle at any time and for any reason. Those were precisely the reasons why, on the one hand, Mr Collier considered he needed to apply for an occupation and transfer of tenancy order under the FLA, and why, on the other hand, DJ Cushing dismissed Mr Collier's application.
  97. I do not consider that either side obtains any advantage from Mr Collier's application under the FLA for an occupation and transfer of tenancy order. On the one hand, I do not accept that Ms Boyle's acquiescence in Mr Collier's application indicated that she did not regard the Highbury flat as her principal home or that she did not intend to return to live there. It is plain that the only reason for the application was in order to enable Mr Collier to continue to look after Daniel while he attended school in London. It is an entirely legitimate inference that Ms Boyle was prepared to give up her tenancy in favour of Mr Collier if, but only if, his application succeeded.
  98. On the other hand, I reject Ms Boyle's case, pursuant to the Respondent's Notice, that the effect of the FLA section 30(4)(b) is that, since DJ Bowman's order was current at the date of expiry of the notice to quit, the Highbury flat has to be treated as her principal or sole residence at that date. It is not necessary to consider the effect of DJ Cushing's subsequent dismissal of Mr Collier's application. There are two straightforward grounds for rejecting Ms Boyle's case on this aspect of the appeal. First, section 30(4)(b) would only apply if Mr Collier occupied the Highbury flat as his only or principal home. It plainly was not his only home. Whether or not it was his principal home has never been tried or determined. The point was not raised below and so no appropriate findings of fact on the point were made by the Judge.
  99. Secondly, in any event, section 30(4)(b), on its proper meaning, has no application if the Highbury flat was not Ms Boyle's principal home at the time of the occupation order in favour of Mr Collier. Section 30(4)(b) was plainly never intended to place a non-occupying tenant in a better position under the 1985 Act, as against the landlord, than he or she would have been if no occupation order had been granted.
  100. There are other points that were made by both counsel, but it is not necessary to repeat them. The facts of the present case are highly unusual, and are materially different to those of the reported cases to which we were referred. It is a difficult case, and not one in which I consider it would be right for the Court of Appeal to attempt to draw its own inferences from the primary facts found by the Judge. We have not been provided with a transcript of the oral evidence given at the trial. I am not at all confident that we can do justice to both parties without the benefit of any attempt by the Judge, who saw and heard the witnesses, to evaluate the facts and apply to them the above principles so as to identify Ms Boyle's principal home.
  101. For those reasons I would allow the appeal against the Judge's order dismissing the claim for possession, and I would remit the case for re-hearing.
  102. I can deal quite briefly with the appeal from the Judge's order for costs. If the appeal is allowed and the case is remitted for re-hearing, the Judge's order for costs must be set aside. Even if the appeal was not allowed, I would have allowed the appeal in relation to the costs of the unsuccessful summary judgment application. Mr Hutchings submitted that the summary judgment hearing reduced some time and costs of the trial of the action since it enabled the Judge to become familiar with the case. Mr Hutchings conceded, nevertheless, that the summary judgment application gave rise to some additional costs which were not reflected in any benefit to the efficient disposal of the proceedings. I cannot see any principled basis for making Islington, which was successful in defeating the two day summary judgment application, pay all Ms Boyle's costs of that application. The starting point must be that Islington was entitled to the costs of Ms Boyle's unsuccessful application. If that application, although unsuccessful, resulted in a saving of some costs of the trial, there might have been grounds for an order that Islington recover only part of its costs of the application. Again, it would have been legitimate for Islington's costs of the summary judgment application or some of them to be set off against Ms Boyle's costs of the proceedings (other than her costs of the application). The Judge took neither of those courses.
  103. Conclusion

  104. For the reasons I have given I would allow the appeals, set aside the Judge's orders appealed against, and remit the case for re-trial.
  105. Lord Justice Patten

  106. I agree
  107. Lord Justice Mummery

  108. I also agree.


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