Security of tenure: only or principal home

Thursday 6 April 2017

Dove v London Borough of Havering [2017] EWCA Civ 156, 22 March 2017

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Dove v London Borough of Havering [2017] EWCA Civ 156, 22 March 2017

The appellants, Evelyn and Elaine Dove, were joint secure tenants of a flat provided to them by the respondent, the London Borough of Havering. In 2003 Havering commenced an investigation into whether either of the Misses Dove had been occupying the flat as her only or principal home.

That investigation was inconclusive, but Havering conducted a further investigation in 2010 and concluded that they were not, and duly terminated the Doves’ housing benefit award, served a notice to quit and issued possession proceedings.

Before the trial of the possession claim the Doves appealed to the First Tier Tribunal (Social Security Chamber) against the decision to terminate their housing benefit award. Their appeal was dismissed, with the judge in the FTT finding that they did not occupy the property as their only or principal home.

The possession claim subsequently came before the county court for trial. The trial judge indicated that he was bound by the decision of the FTT on the issue of whether either of the Doves had occupied the property as their only or principal home. But, in any event, he went on to conclude that the evidence indicated that the sisters spent significant time each week living elsewhere with their respective partners and that the while the flat remained their home, it was not the principal home of either of them.

The Court of Appeal dismissed the Doves' appeal. Since the judge had made findings of fact on the issue of whether the flat was either of the sisters’ principal home, it was not necessary to decide whether he had been correct to decide that there was an issue estoppel requiring him to follow the decision of the FTT.

The principles set down in Islington LBC v Boyle [2011] EWCA Civ 1450, [2012] PTSR 1093, a case involving an absent tenant, were of equal application to a case where the court needed to decide which of two homes was a tenant’s principal home. That question could not be answered by simply counting how many days the tenant spent at each property. However, the judge did not decide the question on that basis and his conclusion had been one which was open to him on the facts.

Click here for the judgment.

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