London Borough of Islington v Boyle & Anor

Factual and Procedural Background

This appeal concerns possession proceedings brought by a local authority ("Company A") against a tenant ("Defendant") of a residential flat ("the Property"). The Defendant was granted a secure tenancy of the Property in 1996. Following a breakdown of her relationship with a cohabitant ("Co-Defendant"), the Defendant and her daughters moved to another property ("the Second Property") in 2004 due to the behaviour of their son, who remained in the Property with the Co-Defendant. The Defendant maintained that she intended to return to the Property and regarded it as her principal home despite living elsewhere for a prolonged period.

Company A served a notice to quit on the Defendant in October 2007, expiring in November 2007, and subsequently issued possession proceedings alleging that the Defendant had ceased to occupy the Property as her only or principal home, thereby losing security of tenure under the Housing Act 1985 ("the 1985 Act"). The Defendant denied this, asserting continued occupation through intention and other factors.

A trial judge dismissed Company A's claim for possession in November 2010, holding that the Defendant continued to occupy the Property as her principal home at the relevant date. Company A appealed this decision, as well as an order requiring it to pay the Defendant's costs. The appeal court heard arguments regarding the interpretation and application of the Tenant Condition under the 1985 Act, focusing on whether the Defendant occupied the Property as her only or principal home at the expiry of the notice to quit.

Legal Issues Presented

1. Whether the trial judge was correct to hold that the Defendant satisfied the Tenant Condition under section 81 of the Housing Act 1985 by occupying the Property as her only or principal home at the date of expiry of the notice to quit.
2. Whether the effect of an occupation order made under the Family Law Act 1996 ("FLA") deemed the Defendant to be in occupation of the Property as her only or principal home at the relevant date.
3. Whether the costs order requiring Company A to pay the Defendant's costs was a proper exercise of judicial discretion.

Arguments of the Parties

Appellant's Arguments

• The trial judge correctly stated the legal test for occupation but failed to properly address whether the Defendant occupied the Property as her sole or principal home objectively at the expiry of the notice to quit.
• The evidence objectively showed that the Defendant had been living in the Second Property for over three years with her daughters, who attended local schools there, and she was registered with a local doctor there, indicating the Second Property was her principal home.
• The Defendant admitted in a benefits fraud interview that she and the Co-Defendant had "swapped homes," undermining her claim that the Property remained her principal home.
• The Defendant's acquiescence to the Co-Defendant's application for a transfer of tenancy under the FLA was evidence she did not intend to return to the Property.
• Company A contended that public housing is a scarce resource and the Tenant Condition imposes a stricter requirement than previous residence protections; thus, the Defendant failed to discharge the burden of proving the Property was her principal home.
• The costs order was challenged as unreasonable because Company A was successful in opposing the Defendant's summary judgment application, which lasted two days, and it was inappropriate for Company A to pay all costs.

Respondent's Arguments

• The Defendant argued she never abandoned the Property as her principal home and always intended to return when circumstances permitted, particularly after her son completed school.
• She maintained that the arrangement to live at the Second Property was temporary and driven by the children's needs, especially the son's special educational requirements.
• The Defendant asserted that the presence of her furniture at the Property, her key retention, visits, and support from family nearby evidenced continuing occupation.
• She relied on the effect of the occupation order under the FLA, contending that at the expiry of the notice to quit, by virtue of section 30(4)(b) of the FLA, she was deemed to be in occupation of the Property as her only or principal home.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Brown v Brash and Ambrose [1948] 2 KB 247	Principles on continuing occupation despite physical absence; need for intention to return and outward signs of occupation such as furniture or caretaker.	Used to establish that a tenant may retain occupation if there is intention to return and visible evidence of occupation, such as furniture and presence of family members.
Tickner v Hearn [1960] 1 WLR 1406	Requirement of real hope and practicable possibility of returning within a reasonable time.	Supported the need for evidence beyond subjective intention, including practical possibility of return.
Gofor Investments Ltd v Roberts [1975] 20 P&CR 366	Application of Brown v Brash principles to longer absences; furniture can constitute "corpus possessionis".	Affirmed that absence for extended periods can be consistent with occupation if intention and outward signs exist.
Brickfield Properties Ltd v Hughes (1987) 20 HLR 108	Consideration of principal home when tenant has multiple residences; intention to return conditional on circumstances.	Applied to assess principal home status where tenant had another property; court accepted conditional intention to return.
Ujima Housing Association v Ansah (1997) 30 HLR 831	Objective assessment of occupation and principal home, not solely subjective intention.	Emphasized the need for objective evidence to support claims of continuing occupation.
Amoah v London Borough of Barking & Dagenham (2001) 82 P&CR DG 6	Summarized principles for occupation as a home despite living elsewhere, including burden of proof and signs of occupation.	Guided the court’s framework for assessing occupation and principal home status.
Crawley BC v Sawyer (1987) 20 HLR 108	Temporary absence does not necessarily negate principal home status.	Supported the view that temporary residence elsewhere does not defeat principal home status.
Hammersmith & Fulham LBC v Clarke (2001) 33 HLR 26	Enduring intention, objective assessment of occupation, and consideration of changes of mind.	Reinforced that enduring intention and objective facts are key in determining principal home.
Basingstoke and Deane Borough Council v Plaice (1995) 27 HLR 433	Tenant condition under Housing Act 1985 has ambulatory effect; must be satisfied at relevant time.	Confirmed that occupation must be assessed at the expiry of notice to quit.

Court's Reasoning and Analysis

The court began by confirming the correct legal test for the Tenant Condition under the Housing Act 1985, emphasizing that the tenant must occupy the dwelling as their only or principal home at the relevant time, here the expiry of the notice to quit. The court acknowledged established principles from precedent cases, which require an objective assessment of the tenant's actions and intentions rather than reliance solely on subjective belief.

The judge at trial had found that despite the Defendant's physical absence from the Property between 2004 and 2008, she maintained an enduring intention to return, supported by the presence of furniture, the residence of family members in the Property, and other objective factors. The trial judge gave limited weight to the Defendant's inconsistent statements suggesting the Second Property was her principal home, considering her legal understanding and the context.

On appeal, the court agreed that the trial judge correctly applied principles regarding continuing occupation despite absence but identified a failure to address fully whether the Property was objectively the Defendant's sole or principal home at the expiry of the notice to quit. The court noted the complexity of the factual matrix, including the Defendant's prolonged residence at the Second Property with her daughters, their schooling and medical registration there, and the Defendant's own statements indicating a settled life outside the Property.

The appellate court recognized that the question of principal home status in cases involving multiple residences requires careful weighing of all facts and circumstances, including the length and reason for absence, intentions, and objective signs of occupation. The court found that the trial judge's conclusion was not the only possible one on the evidence, and it was not appropriate for the appellate court to substitute its own findings without a full re-examination of the evidence, including oral testimony.

The court also rejected the Respondent's argument relying on the Family Law Act 1996 occupation order deeming the Defendant in occupation for Housing Act purposes, holding that this statutory provision did not apply as the Co-Defendant was not occupying the Property as his only or principal home, and the point had not been properly litigated below.

Regarding costs, the court found the order requiring Company A to pay all the Defendant's costs of the proceedings, including the unsuccessful summary judgment application, to be an unreasonable exercise of discretion.

Consequently, the court allowed the appeal on the possession claim, set aside the possession and costs orders, and remitted the case for re-trial to enable a full fact-finding exercise on the principal home issue.

Holding and Implications

The court's final decision was to ALLOW THE APPEAL, set aside the trial judge's orders dismissing the claim for possession and ordering costs against the appellant, and remit the case for a re-trial.

The direct effect is that the possession claim by Company A was not upheld on the existing record, but the issue of whether the Defendant occupied the Property as her only or principal home at the relevant date remains unresolved and must be determined afresh. The costs order was also set aside, reflecting the court's view that costs should be reconsidered in light of the re-trial.

No new precedent was established by this decision; rather, the court applied and reaffirmed existing legal principles relating to secure tenancies, occupation, and principal home status under the Housing Act 1985 and relevant case law.