The question of whether a tenant occupies premises as their only or principal home is an objective test and a question of fact; long absences will give rise to a presumption that the tenant has ceased to occupy the premises as his only or principal home
In 1996, Islington granted Ms Boyle a secure tenancy of a two-bedroom flat. She lived there with her partner, Mr Collier, and their three children. Their son was severely autistic and suffered from epilepsy and Tourette syndrome.
In 1999 he started attending a special school for autistic children in north London. In 2004, the relationship between Ms Boyle and Mr Collier broke down. Mr Collier moved out and bought a house in Suffolk. However, later that year, in view of their son’s increasingly aggressive conduct and inappropriate behaviour towards his sisters, Ms Boyle and Mr Collier decided that she and her daughters would move out of the flat and live in the Suffolk house, and Mr Collier would move back into the flat and care for their son. The personal belongings of Ms Boyle and her daughters were moved to Suffolk. Large pieces of her furniture remained in the flat. Ms Boyle was registered with a local GP in Suffolk. Her daughters were entered into a local school. Ms Boyle initially intended the move to the Suffolk house to be a temporary one for six months, but it became prolonged. Meanwhile, Mr Collier, with her permission, dishonestly submitted applications for benefits on the basis that she remained living in the flat and had care of their son. In January 2007, Ms Boyle and Mr Collier wrote a letter to Islington in which they acknowledged that they had not gone about matters properly in relation to the tenancy and claims for benefits. They asked permission for Mr Collier to live in the flat so that their son could remain in London. Islington did not accept the proposed arrangement. In October 2007, a housing officer asked Ms Boyle whether the Suffolk house was her principal home. She replied that she was living in the country. The same month, Islington served a notice to quit on Ms Boyle. In September 2008, Ms Boyle moved back into the flat, and Mr Collier and their son went to live with the two daughters in the Suffolk house. Islington brought a possession claim.
HHJ Matheson dismissed the claim.
The Court of Appeal allowed Islington’s appeal. Etherton LJ summarised the principles to be applied in determining whether a tenant continues to occupy a dwelling as his/her home despite living elsewhere:
First, absence … may be sufficiently continuous or lengthy or combined with other circumstances as to compel the inference that, on the face of it, the tenant has ceased to occupy the dwelling as his or her home. In every case, the question is one of fact and degree. Secondly, assuming the circumstances of absence are such as to give rise to that inference: (1) the onus is on the tenant to rebut the presumption that his or her occupation of the dwelling as a home has ceased; (2) in order to rebut the presumption the tenant must have an intention to return; (3) while there is no set limit to the length of absence and no requirement that the intention must be to return by a specific date or within a finite period, the tenant must be able to demonstrate a ‘practical possibility’ or ‘a real possibility’ of the fulfilment of the intention to return within a reasonable time; (4) the tenant must also show that his or her inward intention is accompanied by some formal, outward and visible sign of the intention to return, which sign must be sufficiently substantial and permanent and otherwise such that in all the circumstances it is adequate to rebut the presumption that the tenant, by being physically absent from the premises, has ceased to be in occupation of it. Thirdly, two homes cases … must be viewed with particular care … Fourthly, whether or not a tenant has ceased to occupy premises as his or her home is a question of fact. In the absence of an error of law, the trial judge’s findings of primary fact cannot be overturned on appeal unless they were perverse, in the sense that they exceeded the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible; but the appeal court may in an appropriate case substitute its own inferences drawn from those primary facts (para 55).
However, in relation to secure tenants, it is not enough to satisfy the tenant condition that the tenant occupies the dwelling as his/her home (Housing Act 1985 s81): the dwelling must be occupied as the tenant’s only or principal home. Where tenants are physically absent from dwellings, their intentions about living there again as the sole or principal home will be critical. It is not sufficient, however, for the tenant merely to give oral evidence of his/her subjective belief and intention. The credibility of such evidence as to belief and intention must be assessed by reference objectively to ascertained facts. The reason for the absence, the length and other circumstances of the absence and (where relevant) the anticipated future duration of the absence, as well as the statements and conduct of the tenant, are all relevant to that objective assessment.
Where a notice to quit has been served to terminate the contractual tenancy, the tenant condition must be satisfied on the expiry of the notice to quit. What happened before the expiry of the notice to quit and what happened after it may, nevertheless, throw light on whether the tenant condition was satisfied at the date of expiry of the notice to quit. In this case, the judge did not consider whether or not the flat was Ms Boyle’s principal home and so the Court of Appeal remitted the possession claim to the county court.