Occupation of property as only or principal home


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On 15 March 2017 the Court of Appeal handed down judgment in the case of Evelyn Dove (1) Elaine Dove (2) v The London Borough of Havering. This was an appeal by the tenants against their eviction by the local authority.

The local authority had been suspicious for some time that the tenants who were sisters were not occupying their property as their only or principal home. An initial investigation in 2003 was inconclusive but a second investigation in 2010 found that no one was living at the tenanted property.

The local authority therefore withdrew housing benefit and served a Notice to Quit. The sisters unsuccessfully appealed to the First-tier Tribunal (Social Entitlement Chamber) (FTT) against the withdrawal of their benefit. In the course of the Tribunal proceedings, reference was made to the fact that both sisters were in long term intimate relationships of 30 and 20 years respectively, with men who lived in other areas of London, spending four to five nights with their partners. The Tribunal therefore concluded that the sisters' flat was not in use as a home but rather as a storage facility, also taking note of the fact that the consumption of utilities was very low.

The local authority applied for possession of the property and was successful. The sisters appealed this decision arguing that the Judge had been wrong to essentially be bound by the decision made in the FTT and also failed to consider the intention of either sister as regards the flat.

The Court of Appeal rejected the sisters' argument and found that the Judge had considered all of the evidence and had made his own findings of fact. The Court also considered it critically important that what the sisters had argued before the Judge was not that there had been  a change of circumstances since the decision of the FTT  had  been made, but that the decision made had been wrong. Furthermore, neither of the sisters had suggested they had an intention to change their settled patterns of life in the foreseeable future.

The question of whether a property was a person's principal home could not be decided by a simple "day count" and the Judge had correctly looked at all of the evidence, including the evidence adduced before the FTT. The Judge was therefore entitled to conclude that neither sister was occupying the flat as their principal home when the notice to quit was served and took effect.

Registered providers should take heart from this decision and feel confident that if they have robust evidence they can put before the court, that Judges will make  the right decision. However, it should be remembered that the evidence in this case was very strong and that in cases where it is alleged that tenants do not occupy a property as their only or principal home (and do not have an intention to return), the courts will look at all of the evidence put before them, including the evidence of absent tenants and what their intentions are.

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