The Mayor and Burgesses of the London Borough of Hammersmith and Fulham -v- Andrew Clarke and Donna Clarke

Whether a tenant occupies premises as their only or principal home is assessed at the date when the contractual tenancy ends. The court must make an objective assessment of all the evidence, including the tenant’s intention, physical occupation, furniture and other continuing signs of occupation.

Where absence results from hospital or residential care, the court should focus on the tenant’s enduring intention rather than fleeting changes of mind. Particular statements made during periods of ill health, depression or medication may carry limited weight. Evidence before and after the relevant date may assist in determining the tenant’s intention at that date.

The council appealed against the dismissal of its possession claim concerning 11 Bryony Road. The contractual tenant, Mrs Joyce Clarke, had moved into residential nursing care following a stroke, while her grandson and his wife continued living at the property.

The council served notice to quit on the ground that Mrs Clarke no longer occupied the dwelling as her principal home. The county court found that she had always intended to return home and concluded that the tenant condition for a secure tenancy remained satisfied. The central issue was whether that conclusion applied the correct legal test and was supported by the evidence.

1. Appeal dismissed. The county court had applied the correct approach and was entitled to dismiss the possession claim.
2. Under section 81 of the Housing Act 1985, the tenant must occupy the dwelling as their only or principal home. The issue falls to be determined at the date when the contractual tenancy is terminated. However, evidence from both before and after that date may be relevant when determining the tenant’s intention at the relevant time.
3. The inquiry is objective. It requires consideration of all the circumstances rather than reliance solely on the tenant’s evidence in the witness box. There must be continuing signs that the premises can be occupied as a home and, where the tenant is temporarily absent, an intention to return.
4. In cases involving hospital or nursing-home residence, the court should distinguish absence for care from relinquishment of possession to another person. A tenant’s physical or mental condition may fluctuate, and the court should be slow to place excessive weight on an isolated statement made during a particular period. The enduring intention is more significant than a short-lived change of mind.
5. The evidence included Mrs Clarke’s continuing family connection with the property, the absence of evidence that her furniture had been removed, the adaptations and equipment at the premises, her periodic returns, and her explanation of the January note as reflecting a temporary intention while depressed and receiving medication. The judge was entitled to accept that evidence and find that the tenant condition was satisfied.

The appellant was ordered to pay the respondents’ costs, subject to legal aid taxation.

• Court of Appeal (Civil Division): appeal from the dismissal of the council’s possession claim; appeal dismissed.
• Willesden County Court: His Honour Judge Rountree dismissed the council’s claim for possession on 27 October 1999.