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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Freeman v London Borough of Islington  EWCA Civ 536 (11 June 2009)
Cite as:  HLR 6,  EWCA Civ 536,  24 EG 85,  L & TR 23
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CLERKENWELL & SHOREDITCH
His Honour Judge Mitchell
Strand, London, WC2A 2LL
B e f o r e :
THE RT HON LORD JUSTICE LONGMORE
THE RT HON LORD JUSTICE JACOB
| Linda Freeman
|- and -
|The Mayor and Burgesses of the
London Borough of Islington
Christopher Baker (instructed by London Borough of Islington Legal Services)
for the Respondent
Hearing date: 13 May 2009
Crown Copyright ©
Lord Justice Jacob:
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 …
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 ) 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."
"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.
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).
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.
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 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.
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."
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.
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.
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.
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.
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
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.
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.
 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.
 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.
 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.
Lord Justice Longmore:
Lord Justice Waller: