Caselaw: Considering whether a dwelling is the client's only or principal home

Carmel Ferguson discusses an England & Wales Court of Appeal judgment which considered the question of when a residence should be treated as an individual’s principal home.

In this case, Dove v London Borough of Havering [2017] EWCA Civ 156, London Borough of Havering terminated a Housing Benefit claim as it contested that the claimants were not residing in the dwelling as their only or principal home. A possession order was made against the joint tenants on the grounds of both rent arrears and the non-occupation of the property.  The tenants then appealed the possession order.

Background to the case

Evelyn and Elaine Dove are twin sisters who were joint tenants of a local authority flat. Their landlord was granted possession of the flat on the grounds that they were not occupying it as their only or principal home. The sisters appealed to the Court of Appeal.

Both sisters had long standing relationships with partners. They had keys to their respective partners’ flats and spent from between five and seven days in these properties each week. Evidence, such as ATM usage, linked the sisters to the areas in which their partners resided. The consumption of electricity at the home address was “appreciably less” than might be expected with two adults living in the flat.

London Borough of Havering decided that the tenants were not occupying the property as their home and ended the sisters’ claim for Housing Benefit. The sisters appealed the decision via a tribunal. During this tribunal hearing the judge said that he understood why they wished "to be in a position to have their own place – their own space – somewhere to which they can return in order either to be alone or if the worst happens and their relationship breaks down a place to live." But there was no evidence that either Ms Evelyn or Ms Elaine Dove had any actual intention to change the settled pattern of life which they were living. Subsequent to this tribunal, a possession order was granted and this was the subject of the sisters’ appeal to the Court of Appeal. Both the possession hearing and the appeal relied on some of the findings from the original Housing Benefit tribunal.

Is the dwelling the person’s home and, if so, is it the person’s only or principal home?

The court held that there are two parts to the question:

1. does the person in question occupy the dwelling as a home and
2. if so, does he or she occupy it as his or her only or principal home?

The effect of the existing case law in this regard had been summarised by Etherton LJ in the case of Islington LBC v Boyle [2011] EWCA Civ 1450, [2012] PTSR 1093 as follows:

"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.”

The Appeal court was satisfied that the judge in the lower court had considered the evidence for himself and concluded that the tenants were not occupying the property as their only or principal home. The appeal court held that the question to be decided was “is the pattern of residence such that either Ms Dove is occupying the flat at Highfield Tower as her principal home?”

Lord Justice Lewison  concluded that:

“An intention to retain a flat as a place to be alone is certainly a factor in considering whether the flat is occupied as a home, but it is of little help in deciding whether that flat is a person's principal home. I do not, of course, suggest that that question is to be decided by a simple "day count." But I do not think that the judge decided the question on that basis. He looked at all the evidence (including that adduced before the FTT) in the round.

In my judgment on the facts that he found the judge was entitled to conclude that neither Ms Elaine Dove nor Ms Evelyn Dove was occupying the flat as her principal home when the notice to quit was served and took effect. Neither, therefore, was a secure tenant. It follows that Havering was entitled to possession without the need to prove a statutory ground. I would dismiss the appeal.”

Relevance of this judgment to Northern Ireland

This case is a UK Court of Appeal case and therefore deals with the UK Housing Act 1985, but the provisions of the Housing (NI) Order 1983 are similar. The terms and conditions contained in a social tenant’s tenancy agreement would include a condition that the tenant must occupy the property as their only or principal home. If, therefore, the social landlord has reason to believe that a tenant is not occupying the property as their only or principal home, the landlord could issue possession proceedings.

Article 25 of the Housing (NI) Order 1983 defines a secure tenancy and includes a condition that the property must be occupied by the tenant as his or her only or principal home.  

If therefore, the court is satisfied that the tenant is not occupying the property as their only or principal home, it follows that there is no secure tenancy and that the landlord does not have to prove a breach under one of the specified grounds or that it is reasonable to grant a possession order.