Dove v London Borough of Havering

A secure housing tenancy requires at least one joint tenant to occupy the dwelling as their only or principal home. Occupation as a home alone does not suffice. The court must assess the tenant’s settled pattern of residence from the evidence as a whole, without relying on a simple count of days.

An intention to return is material where a tenant proposes to resume a former pattern of residence. Where the existing pattern is settled and no change is anticipated, the question is whether that pattern makes the dwelling the principal home. Subjective intention must accord with objectively established facts.

Twin sisters held a joint council tenancy of a flat. The London Borough of Havering served notice to quit on the basis that neither sister occupied it as her only or principal home. It also relied on substantial rent arrears. His Honour Judge Bailey in the Central London County Court refused a last-minute adjournment and made a possession order.

The tenants appealed, challenging the refusal of an adjournment, the use of a DVD showing the flat, the continuation of the trial during one tenant’s absence, the judge’s treatment of earlier First-tier Tribunal findings and his conclusion about principal residence. The central substantive issue was whether at least one joint tenant satisfied the tenant condition in section 81 of the Housing Act 1985.

1. Appeal dismissed. Lewison LJ held, with Patten LJ agreeing, that the judge had been entitled to refuse the last-minute adjournment. The judge’s references to relief-from-sanctions authorities concerned the serious consequences of losing a fixed trial date. He had not mistakenly applied the three-stage sanctions test. The lateness of the application, previous delay, increasing arrears, lack of means to meet wasted costs and uncertainty that an adjournment would assist all supported his decision. The weight assigned to those matters was for the trial judge, and the Court of Appeal should intervene in such case-management decisions only when compelled to do so.

2. An adjournment sought on medical grounds will normally require evidence from a practitioner familiar with the party. It should identify the condition and the features preventing participation, provide a reasoned prognosis and address possible accommodations short of adjournment. The ultimate decision remains that of the court. No such evidence had been provided.

3. The DVD had already featured in related benefit proceedings, the tenants knew its contents, and one tenant referred to it while cross-examining a council witness. No objection was made when the judge asked to see it. Its use was not procedurally unfair. Nor was it unfair to continue on the final day when one tenant was absent through an unspecified illness, no adjournment was requested and her written evidence was admitted and considered.

4. Section 81 of the Housing Act 1985 presents two questions: whether the dwelling is occupied as a home and, if so, whether it is the tenant’s only or principal home. The latter requirement is more stringent. Where an earlier pattern of principal residence is said to be capable of resuming, an intention to return means an intention to revert to that pattern. Its credibility must be tested against objective facts.

5. Where the tenant’s pattern of residence has remained settled, the issue is not whether an absence broke continuity. It is whether that pattern makes the dwelling the principal home. An intention to retain accommodation as a private refuge may assist in showing occupation as a home, but gives little assistance in identifying the principal home. The assessment is holistic and is not determined by a simple count of days.

6. The judge made his own findings independently of the First-tier Tribunal. Whether its decisions created an issue estoppel therefore did not require determination. On the findings, neither tenant occupied the flat as her principal home when notice was served and took effect. Neither was a secure tenant, and Havering was entitled to possession without proving a statutory ground.

1. Court of Appeal (Civil Division): The tenants’ appeal was dismissed in [2017] EWCA Civ 156. The possession order was upheld.
2. Central London County Court: His Honour Judge Bailey refused an adjournment and made a possession order after finding that neither joint tenant occupied the flat as her principal home.