London Borough of Islington v Boyle & Anor

A secure tenant who lives elsewhere continues to satisfy the tenant condition only if the original dwelling remains occupied as the tenant’s only or principal home. Prolonged absence may place the burden on the tenant to prove an enduring intention to return, a real possibility of return within a reasonable time, and a sufficiently substantial outward sign of continuing occupation.

Subjective intention alone does not establish that a dwelling remains the principal home. The court must assess the tenant’s actions and intentions objectively and determine whether the asserted belief reflects reality. The reason, length and anticipated duration of the absence, the tenant’s conduct and statements, and the nature of any right to occupy another home are relevant. The condition must be satisfied when a notice to quit expires.

Islington sought possession of a flat let to Ms Boyle. She had lived elsewhere with two of her children for more than three years, while her former partner and their disabled son lived in the flat. A notice to quit expired on 26 November 2007.

His Honour Judge Matheson QC dismissed the possession claim. He found that Ms Boyle had retained a long-term intention to return, had left furniture in the flat and had permitted members of her family to occupy it. He concluded that she continued to occupy it as her only or principal home within sections 79 and 81 of the Housing Act 1985.

Islington appealed, arguing that the judge had addressed continuing occupation but had failed separately to decide whether the flat was Ms Boyle’s principal home. By a respondent’s notice, Ms Boyle also relied on an occupation order made under the Family Law Act 1996.

1. Appeals allowed and case remitted for retrial. The tenant condition under sections 79 and 81 of the Housing Act 1985 has two distinct elements: the tenant must occupy the dwelling, and that occupation must be as the tenant’s only or principal home. The county court judge addressed the first element but failed separately to determine the second by reference to all the evidence.
2. Prolonged absence may justify an initial inference that occupation as a home has ceased. The tenant must then prove an intention to return, a practical or real possibility of fulfilling that intention within a reasonable time, and a substantial, permanent, outward and visible sign of continuing occupation. The question is one of fact and degree. Two-home cases require particular care.
3. Where the issue is which of two or more homes is the principal home, the tenant’s subjective intention and belief are insufficient. Credibility must be assessed against objectively established facts, and the claimed intention and belief must themselves reflect the reality of continuing occupation as a principal home. Relevant matters include the reason, length and anticipated duration of absence, together with the tenant’s statements and conduct. The court should focus on enduring intention rather than fleeting changes of mind.
4. The tenant condition must be satisfied when the notice to quit expires. Earlier and later events may illuminate the position at that date. The evidence permitted competing inferences about Ms Boyle’s principal home, so the Court of Appeal could neither uphold the result as inevitable nor substitute a possession order. Retrial was required.
5. The respondent’s notice was rejected. Section 30(4)(b) of the Family Law Act 1996 required proof that the beneficiary of the occupation order occupied the flat as his only or principal home, which had not been tried. In any event, the provision could not place a non-occupying tenant in a better position against the landlord than if no occupation order had been made.
6. The costs order was also set aside. Even apart from the retrial, there was no principled basis for requiring Islington, which defeated a two-day summary judgment application, to pay all the unsuccessful applicant’s costs of that application.

1. Court of Appeal (Civil Division): The appeals were allowed, the possession and costs orders were set aside, and the case was remitted for retrial: [2011] EWCA Civ 1450.
2. Clerkenwell and Shoreditch County Court: His Honour Judge Matheson QC dismissed Islington’s possession claim and subsequently ordered Islington to pay Ms Boyle’s costs. No neutral citation is stated.