Wall v Sheffield City Council

Under section 87(b) of the Housing Act 1985, a succession claim requires residence throughout the 12 months preceding the tenant’s death. A temporary physical absence does not automatically end residence. The court must examine the continuing physical connection with the dwelling and the quality of the intention to return, including outward evidence and the real prospect of return within a reasonable time. The trial judge must isolate the disputed period, recognise agreed facts, apply the correct legal approach and weigh material evidence. An unfocused assessment of surrounding circumstances makes the possession decision unsafe and requires the issue to be reheard.

Mrs June Wall held a secure tenancy of 18 Oldfield Terrace. After her death, Sheffield City Council sought possession because her adult foster son, Steven Wall, claimed succession under section 87(b) of the Housing Act 1985. The recorder accepted an estoppel point concerning family membership but held that residence throughout the preceding 12 months was not proved. The evidence showed established residence in Sheffield before and after a temporary London work placement, leaving a short period immediately before the qualifying year began as the critical issue. The appeal concerned whether the recorder had properly identified and evaluated that issue, including the appellant’s physical connection with the property and intention to return.

All three Lord Justices agreed that the recorder’s judgment was inadequate. The appeal was allowed.

1. Statutory qualification. Section 87(b) of the Housing Act 1985 required the appellant to establish residence with the tenant throughout the whole 12-month period ending with her death. The disputed interval could not be disregarded as insignificant. The family-membership issue was not reopened because the recorder’s estoppel finding was not challenged by a respondent’s notice.
2. Temporary absence. The authorities established the correct approach. Crawley BC v Sawyer (1987) 20 HLR 98 recognised the relevance of physical signs of occupation and an intention to return. Camden LBC v Goldenberg (1996) 28 HLR 727, drawing on Brickfield Ltd v Hughes (1988) 20 HLR 108, confirmed that absence does not necessarily end residence. The court must assess the continuing connection with the property, the quality of the intention to return, outward evidence of that intention, the real possibility of return within a reasonable time and any competing home.
3. Error below. The recorder failed to isolate the short period from 22 June to 6 July 2002, failed clearly to recognise the residence accepted before and after that period, and did not apply the relevant legal approach. He also failed to address material evidence, including the temporary nature of the London employment, the appellant’s Sheffield address, retained belongings and evidence from the employment agency and DLA. His assessment of surrounding circumstances was therefore unfocused and inadequate.
4. Order. The possession order was discharged and the matter remitted to the Sheffield County Court for retrial before a full circuit judge. Questions concerning relief following the appellant’s surrender of possession were left to that judge. The application for permission to rely on further evidence was refused.

• Court of Appeal (Civil Division) — [2006] EWCA Civ 495 , 23 March 2006: allowed the appeal, discharged the possession order and remitted the matter for retrial.
• Sheffield County Court — Mr Recorder Ake, 13 December 2004: made a possession order after rejecting the appellant’s statutory succession defence.