Tibbs v London Borough of Islington

For the statutory right to buy, the tenant condition turns on whether the tenant occupies the dwelling as their only or principal home. Occupation may be physical or may be established through an intention to occupy, assessed objectively. The appeal court need not determine where the tenant lives elsewhere if the evidence does not establish occupation of the subject dwelling. On a permission application, an appeal based on factual findings will be refused where there is no real prospect of success and no other compelling reason for an appeal. A trial judge may prefer credible and consistent evidence over contradictory evidence and treat collateral documents as undermining, rather than deciding, the central issue.

Mrs Catherine Tibbs and Mr Ronald Tibbs sought permission to appeal from the judgment of Mr Recorder Baldwin QC at the Central London Civil Justice Centre dated 12 May 2005. The Recorder held that Mrs Tibbs did not have a right to buy 28B Michison Road and that Islington’s notice to quit should take effect.

The applicants had served a right-to-buy notice under the Housing Act 1985 in 1999, but the borough later disputed that Mrs Tibbs occupied the property as her only or principal home. The Recorder accepted evidence from neighbours and a housing investigations officer and rejected the contrary evidence. The grounds concerned the absence of a finding about her alternative address, the weight given to an address in an Orange Badge application, the test for intention to return, and late evidence. The central question was whether the proposed appeal had a real prospect of success or another compelling reason to proceed.

1. Application refused. The court proceeded in Mrs Tibbs’s absence after an adjournment had been refused. Any necessary extension of time was assumed in her favour, but the application failed on its merits.
2. The relevant tenant condition under section 81 of the Housing Act 1985 required the tenant to occupy the dwelling as their only or principal home. Occupation could be physical or a matter of intention, and intention was to be assessed objectively. The issue was whether Mrs Tibbs occupied, or intended to occupy, 28B; it was not necessary for the Recorder to identify where she lived if she did not occupy that property.
3. The Recorder was entitled to prefer the evidence of the neighbours and the housing investigations officer. The Orange Badge application, which gave another address, was collateral evidence undermining Mrs Tibbs’s case rather than the principal basis of the decision. Correspondence using the 28B address did not carry critical weight. The credibility findings and the conclusion that Mrs Tibbs had not occupied the property for many years and had no intention of returning were fully open on the evidence.
4. The Recorder had considered the legal test for intention sufficiently. The evidence relied on by the applicants showed alleged present residence rather than an intention to return, and the apparent signs of habitation arose when the issue had become acute. Documentary evidence available at trial came too late on appeal. Any complaint about an earlier strike-out application had been overtaken by the trial on the merits, and minor factual errors were immaterial.
5. Under the permission test, the proposed appeal had to show a real prospect of success or another compelling reason. Neither existed. Order: application refused.

• Court of Appeal (Civil Division): On 13 September 2005, Lord Justice Rix refused permission to appeal. The court assumed any necessary extension of time but rejected the application on its merits.
• Central London Civil Justice Centre: Mr Recorder Baldwin QC, on 12 May 2005, held that Mrs Tibbs did not have a right to buy 28B Michison Road and that the notice to quit should take effect.