Wycombe District Council v Huijer & Anor

Whether a dwelling remains a tenant’s principal home, so that a secure tenancy continues, is a question of fact. The court must consider the tenant’s subjective intention and the objective circumstances. A second home does not automatically displace the first. Some evidence, including rent payments, utility payments, post collection, electoral-roll registration and local banking arrangements, may be neutral. Retaining furniture, a car and visiting the dwelling may be relevant. An intention to retain a home may be difficult to displace without fairly radical conduct. A failure to address the burden of proof, combined with an unfair view of a party’s conduct capable of colouring factual findings, may justify permission to appeal.

Wycombe District Council v Huijer & Anor concerned a possession claim involving a secure tenancy under section 79 of the Housing Act 1985. The tenants had moved to run a public house while pursuing a right-to-buy application concerning the council property. The Council served notice, asserting that the property was no longer the first defendant’s only or principal home.

The High Wycombe County Court found that the property remained the tenants’ principal home. The Council applied for permission to appeal, arguing that the judge had failed to address the burden of proof and had taken an unfair view of the Council’s conduct and correspondence. The central issue was whether those matters gave a sufficient prospect and reason for an appeal to proceed.

Application granted. Lord Justice Lloyd granted permission to appeal and extended time. The underlying merits were not finally determined by the Court of Appeal. If the appeal succeeded, a new trial would be required.

1. The tenancy had been secure under section 79 of the Housing Act 1985. Whether it remained secure depended on whether the property was the first defendant’s only or principal home. It was plainly not her only home, because she was living for most of the time at the public house, but it could still be her home despite the existence of another home.
2. The principal-home issue was factual. The judge had to consider both the tenant’s subjective intention and the objective circumstances. The property’s continued furnishing and habitability were relevant. Leaving a car there and visiting when work permitted were also relevant. Regular rent and utility payments, post collection, electoral-roll registration and the location of a bank account were neutral or of little assistance for the reasons identified by the court.
3. An intention to regard premises as a home or principal home could be difficult to displace without conduct of a fairly radical kind, such as subletting, emptying the property of furniture or cutting off utilities. This was general guidance in the context of the permission application.
4. The County Court judge had failed to address the burden-of-proof issue. More importantly, he had taken what Lloyd considered an unfair and inaccurate view of the Council’s conduct. In particular, the Council’s letter did not state that the tenants had already lost the right to buy. That approach may have coloured the judge’s assessment of the evidence.
5. Although the Council faced the usual difficulty in challenging findings of fact, the combined matters gave the appeal more than a fanciful prospect of success and supplied a compelling reason for permission to be granted.

Order: application granted. Extension of time granted.

1. Court of Appeal (Civil Division) On 7 July 2006, Lord Justice Lloyd granted permission to appeal and extended time: [2006] EWCA Civ 1054.
2. High Wycombe County Court HHJ Cook had found that the property remained the tenants’ principal home and made the order challenged by the Council.