Freeman v London Borough of Islington

For succession to a secure tenancy, “residing with” under the Housing Act 1985 requires more than physical presence, even where the claimant lives at the property full-time and provides care. The claimant must have made a home with the tenant, with the necessary quality of residence throughout the 12 months before death. Intention is important but is assessed from all the circumstances, including the purpose of occupation, any continuing home elsewhere and later evidence illuminating the earlier state of mind. A person may have more than one home, and caring for a tenant does not itself prevent succession, but neither circumstance is conclusive. The issue is fact and degree, and the appeal was dismissed.

Linda Freeman appealed against a possession order made by HHJ Mitchell in the Clerkenwell and Shoreditch County Court. The order was made in favour of the London Borough of Islington after the death of Freeman’s father, the secure tenant of the flat.

Freeman had lived at the flat full-time during the year before her father’s death and had cared for him. She retained an unoccupied flat in Hackney, maintained correspondence and financial arrangements connected with it, and let it shortly before her father died. The county court found that the flat was her only home at death but that she had not resided with her father throughout the preceding year for the purposes of section 87 of the Housing Act 1985.

The central issue was whether full-time physical occupation and caring for the tenant were sufficient, or whether the statutory phrase required a further quality of residence.

1. Appeal dismissed. Jacob LJ delivered the leading judgment, with Longmore LJ and Waller LJ agreeing. The phrase “residing with” in section 87 of the Housing Act 1985 requires more than physical presence or living at the dwelling. The claimant must, to a significant degree, have intended to make a home with the tenant and become part of the household.
2. A person may have more than one home. Retaining another home is not conclusive, but it may be a significant factor. Caring for a tenant may be consistent with residence, but it does not itself establish it. The purpose and quality of the occupation must be considered. The necessary qualities of residence must exist throughout the whole 12-month period before death.
3. Whether a person resided with the tenant is a question of fact and degree. An appellate court must not simply reassess the evidence. It may interfere only for a misdirection in law or where the conclusion was one that no reasonable judge could reach, applying the approach in Assicurazione Generali v Arab Insurance Group [2002] EWCA Civ 1642, whose relevant passage was noted to have been approved in Datec Electronic Holdings v UPS [2007] 1 WLR 1325.
4. The county court judge had not applied an impermissible “settled home” test. His occasional use of “residing at” instead of “residing with” was an inconsequential slip, because he had stated and applied the correct statutory test. His reliance on the appellant’s later letter, the delayed letting of the Hackney flat, continuing utility payments, correspondence, the father’s housing benefit form and uncertainty about the duration of the illness was legitimate. The evidence entitled him to find that Freeman had been caring for her father rather than making the flat her home during the whole relevant period.
5. Hildebrand v Moon (1990) 22 HLR 1 did not require a different result. Nursing a tenant does not automatically prevent residence, but a person who comes to perform a job intending to leave when it ends would not ordinarily satisfy the test. Jacob LJ’s observations on the respondents’ notice were unnecessary to the decision. He indicated obiter that the “only or principal home” question concerns the facts at death, whereas “residing with” concerns the preceding period, and that the same appellate restraint applies.

• Court of Appeal (Civil Division): In [2009] EWCA Civ 536, dismissed Freeman’s appeal and upheld the possession order.
• Clerkenwell and Shoreditch County Court: HHJ Mitchell made a possession order in favour of the London Borough of Islington after finding that Freeman had not resided with her father throughout the required 12-month period.