Wall v Sheffield City Council

LORD JUSTICE WILSON: Mr Wall, the appellant, has been acting in person in this appeal. Yesterday, by fax, he sent a letter to the court in which he sought adjournment of today’s hearing sine die on the basis that he was suffering clinical depression and was psychologically unfit to present his appeal. The court communicated with him that it was far too late from the point of view of the respondent, Sheffield City Council, if for no other reason, to vacate today’s hearing, and urged him, if he could, to come today. I am extremely glad that, notwithstanding his present difficulties, the appellant steeled himself to come. When the hearing began this morning, he got up and began to seek to explain to us why he felt unable to present his substantive appeal. But, under the gentle and friendly direction of my Lord, Ward LJ, the case proceeded in such a way as, perhaps without the appellant’s realising it, to enable him to present his appeal. Insofar as he had been nervous, he seemed to lose his nervousness. He seemed to be in quite sufficient control of his emotions, of the facts, and indeed of the law, in order to present his appeal to us; and I am sure that my Lords are as pleased as I am that, in that subtle way, the need for an adjournment has been avoided and we are at the stage today of being able, at least in this court, to conclude matters. I should say that, in the court below, the appellant also represented himself; and Mr Tyson of counsel represented Sheffield, as I will call it. Mr Tyson has been present today in response to the appeal and has done his valiant best to defend the judgment to which I am about to turn.

The appeal is against a possession order made against the appellant by Mr Recorder Ake in the Sheffield County Court on 13 December 2004. The property of which the appellant was ordered to give possession is 18 Oldfield Terrace, Stannington, Sheffield. Until her death on 21 June 2003 Mrs June Wall had occupied the property under a secure tenancy granted to her by Sheffield. At the time of her death the appellant was also on any view resident in the property and, when he refused to give vacant possession of it, Sheffield issued the proceedings. The appellant’s defence to the claim for possession was cast under section 87 of the Housing Act 1985: he contended that he was qualified to succeed Mrs Wall as tenant of the property. The recorder rejected his defence.

Section 87 of the Act of 1985 provides:

“A person is qualified to succeed the tenant under a secure tenancy if he occupies the dwelling-house as his only or principal home at the time of the tenant’s death and either –

…

(b)

he is another member of the tenant’s family and has resided with the tenant throughout the period of twelve months ending with the tenant’s death; …”

In reply to the defence Sheffield took two points:

The appellant was born in 1966 and so is now aged 39. Mrs Wall had been a registered foster mother and in February 1967, when the appellant was aged six months, he had been placed by Sheffield into her short-term care as a foster child. The evidence was that the placement had developed into a long-term foster placement; that the appellant had lived with Mrs Wall and her older, biological children throughout his minority and indeed beyond it; that he and Mrs Wall had been utterly devoted, each to the other, from the time of his placement with her as a baby until the time of her death; but that she had never considered it necessary during his minority to seek to adopt him.

It is, in fact, fairly clear that a foster child, unlike a biological child, an adoptive child or indeed a step-child, is not a member of a foster mother’s family for the purpose of section 113 and therefore of section 87 of the Act of 1985. Nevertheless the recorder held that Sheffield was estopped from disputing that the appellant was a member of Mrs Wall’s family for the purposes of the Act; and Sheffield has not filed a respondent’s notice by which it might have sought to challenge that conclusion in this court. The estoppel arose in this way. The evidence showed that, for a number of years prior to her death, Mrs Wall, out of her devotion for the appellant, had been concerned that, upon her death, he should succeed to her tenancy of the property. By letter dated 30 November 1992 she wrote to an officer of Sheffield’s housing department, asking for an assurance that upon her death the tenancy would pass to the appellant. In her letter she made it clear that the appellant’s relationship to her was that of a beloved, albeit by then adult, foster son. By letter in response dated 14 December 1992 the director of the department confirmed to Mrs Wall that “provided that [the appellant] has lived with you for a period of 12 months immediately prior to your death there should be no difficulty with regard to succession to the tenancy”. Although in one sense the appellant might be regarded as fortunate that the director there overlooked the apparent legal inability of a foster child to succeed to the secure tenancy of a deceased foster mother, I feel sure that the recorder’s conclusion that Sheffield was estopped from disputing otherwise was correct.

Thus the debate before the recorder was only whether the appellant had resided with Mrs Wall “throughout” the period between 22 June 2002 and 21 June 2003. The hearing before the recorder took three days and at the end of it the recorder held that the appellant had failed to discharge the burden, which was admitted to be upon him, to establish that he had resided with Mrs Wall, i.e. at the property, throughout that period. Thus the recorder made the order for possession. By this appeal, brought with the permission of Mummery LJ granted at an oral hearing, the appellant argues that the recorder’s finding of fact, or perhaps rather the recorder’s refusal to make a finding of fact, is wrong; that he was entitled to succeed to the tenancy; and that the possession order should not have been made.

The bare, uncontroversial history is as follows:

In the light of the bare history which I have attempted to describe, it seems to me that it should have been easy for the recorder to perceive that the question before him was a very narrow one. Speaking for myself, I cannot see how any conclusion could have been reached other than that the appellant had established that he was, at any rate, residing with Mrs Wall at the property from at least, if not before, September 1999 until 1 September 2001. That was the period, of course, during which the appellant was working for DLA in Sheffield. Mr Tyson tells us that, before the recorder, Sheffield did not concede that the appellant was living with Mrs Wall at the property for those two years. When I asked him to explain what alternative case, if any, was being canvassed the recorder as to where, during that time, the appellant was – or might have been – residing, if not with Mrs Wall at the property, Mr Tyson indicated that no such alternative case was being canvassed. It was simply not agreed, for some reason, that the appellant was residing at the property even during those two years. I will advert in due course to how the recorder dealt with that matter. Furthermore I cannot see how any conclusion could have been reached other than that the appellant was residing with Mrs Wall at the property at least from 6 July 2002 until the date of her death, namely following the appellant’s return from London to Sheffield. Indeed Mr Tyson confirms today what was already fairly apparent to us from letters written by Sheffield to the appellant prior to the hearing, namely that his residence with her there from August or July 2002 until the date of her death was accepted.

The year throughout which the appellant had to establish residence of the property was, if I may remind myself, 22 June 2002 to 21 June 2003. Thus, in my view, the only issue before the recorder was whether the appellant was resident in the property between 22 June 2002 until at latest 6 July 2002. I will refer to that span of time as “the crucial few days”. Let me make two initial reflections upon that issue, as thus identified.

No one suggested to the recorder that such was an issue which was de minimis or beneath the attention of the law. Rightly, the appellant always accepted that the word in section 87, namely “throughout”, meant that he had to establish residence in the property for the entire 52 weeks prior to Mrs Wall’s death and that such required him positively to establish residence during the crucial few days.

My second reflection is this. It was the appellant’s case that, throughout the period of time since the tenancy of the property had been vested in Mrs Wall in 1986, he had resided there with her. In particular it was his case, therefore, that he had resided at the property throughout the period when, by reason of his contractual assignment, he had been despatched by DLA to London, namely the period from September 2001 to June 2002. Sensibly, in my view, the appellant did not argue before the recorder that his residential arrangements were any different for the period between 1 September 2001 to 22 June 2002 from what they were in respect of the crucial few days. So, in my view, it was entirely legitimate for the recorder to focus upon the appellant’s residential arrangements throughout those ten months, provided always that he reminded himself that he was doing so in order to illumine a dispute referable to the crucial few days. I would also accept that, with the same important proviso, it was legitimate for the recorder to look even at the appellant’s earlier residential arrangements, by which I mean those prior to 2001 and indeed, perhaps, even prior to 1999. I say so because it was the appellant’s case that, taking a broad sweep, he had always resided at the property. In my view, therefore, it fell to the recorder, in the light of his need to identify such as being the issue, to weigh the arguments put before him by the appellant.

One of the appellant’s arguments was that the contract by which he worked for DLA in London was a fixed contract. He said, and a variety of witnesses on his behalf all said, that, notwithstanding his work in London, he at all times intended (or appeared to intend) to return to live in Sheffield at the property with Mrs Wall, and indeed to work as a solicitor in Sheffield.

I should interpolate that, in respect of his witnesses in that regard, a curious situation appears to have arisen before the recorder. One of his witnesses as to his intentions was Mr Norman, his supervising partner at DLA, Sheffield, during the two years from 1999 to 2001. The appellant caused Mr Norman to sign a statement in which he sought to confirm his understanding that, at all material times, the appellant intended to reside in Sheffield. Apparently that statement was filed and served late by the appellant; but in the bundle there is a letter from Sheffield to the appellant confirming that no point was to be taken against the appellant’s entitlement to put the statement of Mr Norman in evidence. Thus the appellant turned up in court before the recorder expecting, and believing, that Mr Norman’s statement was in evidence. In fact Sheffield had failed to put Mr Norman’s statement in any of the bundles placed before the court; and I have to say that I cannot immediately understand how it was that Mr Wall, being an intelligent man and indeed a qualified lawyer, did not at some stage of the hearing realise that a witness of his, whose evidence he regarded as important, had signed a statement which for one reason or another had not arrived before the recorder. But, even without Mr Norman’s statement, which should clearly have been part of the corpus of evidence on this point for judicial consideration, there was a quantity of evidence in relation to the appellant’s intentions during his period of working in London.

Mr Wall went on to argue that the property had always, even during those ten months, been regarded by him as his home; that he retained his bedroom there, which no one else used; that he retained a quantity of belongings there; that frequently during the ten months he returned to Sheffield at weekends, etc. and stayed in, so he described it, his home. He stressed the unusual closeness, which is clearly demonstrated by the evidence, between him and Mrs Wall which, so he argued, made it more likely that, although now adult, he would want, and Mrs Wall would want, their residence to be in one home together. And he pointed to a large amount of evidence to the effect that the address in Sheffield remained, even during those ten months, as his address for the purposes of his bank, for the purposes perhaps even of his employers, DLA, etc., and that such was testament to his continued residence throughout those months.

In these regards it was necessary for the recorder to weigh the counter-arguments marshalled by Mr Tyson on behalf of Sheffield. In particular, there were six such arguments:

These matters should have been surveyed but so, of course, should the appellant’s responses to them. In relation to points (1), (2) and (3) marshalled by Mr Tyson, the appellant’s argument was that, taken at face value, they might be thought to militate against his having been resident at the property at all, even between 1999 and 2001; but that there was no positive suggestion other than that he had done so; and indeed that, of course such was where he had been living when he had been working in Sheffield. In relation to points (4) and (5), he argued that they only confirmed the inevitable and agreed conclusion that, upon his return from London, he was residing in the property with Mrs Wall. In relation to point (6), his submission appears to have been that, while Mrs Wall’s answer surprised him, it certainly did not bear upon the crucial few days at all.

The recorder should have weighed the arguments, pro and con, in the light, of course, of the law as to the proper approach to periods of absence from a property, under section 87(b) of the Act of 1985, by a person who on any view had been resident there both at an earlier stage and at a later stage. In this regard the recorder was sought to be assisted by the appellant and by Mr Tyson with two authorities.

The first is Crawley BC v Sawyer (1987) 20 HLR 98. In that case the court was concerned, not with succession to a secure tenancy under section 87, but with whether a tenancy had ceased to be secure by reason of the tenant’s failure to continue to fulfil the condition set by section 81 of the Act of 1985, namely occupation of the property “as his only or principal home”. Nevertheless this court held that there was no material difference between occupying premises as a “home” and occupying them as a “residence”. It was a case in which for a period of about a year a secure tenant had gone to live with his girlfriend and had thereafter returned to the property. During that period he had paid rent and rates, visited the property once a month and at some stage had spent a week back there. His evidence was that he had not abandoned the property and had had every intention of returning to it. The trial judge found that, even during that period of about a year, the property had remained, if not his only home, at least his “principal home” for the purpose of section 81 and so the local authority was not entitled to possession of it. This court held that the trial judge had been entitled on the evidence to take the view that the tenant had been living with his girlfriend only on a temporary basis and that, indeed, his principal home remained the property during that period. At 102 Parker LJ said:

“Going through the whole thread of these matters is the common principle that, in order to occupy premises as a home, first, there must be signs of occupation – that is to say, there must be furniture and so forth so that the house can be occupied as a home – and, secondly, there must be an intention, if not physically present, to return to it.”

The second authority is the case of Camden LBC v Goldenberg (1996) 28 HLR 727. This authority was cited by the appellant in the skeleton argument presented by him to the recorder. The appellant makes an unusual complaint in respect of the recorder’s treatment of this authority. Apparently, towards the end of the second day of the hearing, the recorder indicated to the appellant that he regarded the case of Sawyer as being the only really relevant case and he discouraged the appellant from seeking, on the following day, to refer to any other authorities. The appellant’s complaint is that this gave him a sense of constraint, such that he was unable to develop, on the following day, his submissions of law in accordance with the case of Goldenberg. I have to say that, notwithstanding the emotional fragility of the appellant, I would have expected him as a solicitor to realise that, with the charm which has been evident in his submissions to us today, he could have attempted to persuade the recorder on the third day to think better of any indication that the Goldenberg case was not of assistance to him. At all events, I assume that the recorder had had an eye to the Goldenberg case and had digested its substance. It was, indeed, a case which directly concerned the residential qualification for succession to a secure tenancy under section 87 of the Act of 1985. In that case the appellant had lived for a number of years with his grandmother; had then married; had thereupon moved with his bride for three months into a house owned by friends who were abroad; had, throughout that time, left the bulk of his belongings at the grandmother’s property; at the expiry of the three months had been unable with his wife to find other accommodation for them both; and so had moved alone back to the grandmother’s property. By a majority this court allowed his appeal against the possession order. At 732 – 733 Thorpe LJ extracted the following four guidelines from an earlier decision of this court, namely Brickfield Ltd v Hughes (1988) 20 HLR 108:

If such was the task to which the recorder should have addressed himself, how did he, in fact, approach his task? He made no explicit reference to the case law. He made no reference to the correct way, in law, of approaching a period of absence. He made no effort to identify the necessary physical and mental elements which need to be established by a person who, notwithstanding absence, seeks to establish continued residence of the property. He did survey some of the rival arguments which I have sought to summarise. He regarded what I have described as Sheffield’s fifth argument as being “of particular importance”. That, of course, was an argument constructed upon the fact that, in interview with Mrs Wall, a social worker had noted that she had represented that the appellant was living only temporarily with her. As my Lord, Maurice Kay LJ, has put to Mr Tyson, it is not immediately clear why a note which confirmed residence, albeit only temporary, in April 2003 was of “particular importance” in relation to the issue over the crucial few days.

Having, in that limited way, looked at the rival factual contentions, the recorder concluded his judgment in the following words:

“I have to say with some regret that I did not find the defendant to be a convincing or credible witness. None of the above taken individually can be said to decide the matter one way or another, but as I have said, I have to look at all the surrounding circumstances. There are too many ambiguities in this case, and taking all the circumstances into account, I cannot say that the defendant has discharged his burden of proof. I cannot say on balance that I am satisfied as a matter of fact that he has satisfied the twelve-month residence qualification. I cannot therefore say that I am satisfied on balance that he either regarded number 18 as his permanent home or habitually lived there. It may be, and I do not have to decide this, that he used it as an accommodation address and only lived there in between jobs or when studying away. He fails to satisfy the residence qualification and therefore it follows that I must grant the council’s application for possession.”

When my Lords and I sought to put to Mr Tyson that, in the light of the actual issue before the recorder, that was an extraordinarily unfocussed way of determining it, even the admirable Mr Tyson was unable to say much in its defence.

It seems that the recorder did not accept even that the appellant had been resident at the property from September 1999 to September 2001. I have explained that, for some reason and without any particular ammunition in that regard, Sheffield had not conceded such residence, but it seems to me that there was a mass of evidence which compelled only one conclusion, namely that, when working in Sheffield, the appellant had been resident with his mother in the property. In his judgment, he goes on, as it seems to me, not just to say that he is not satisfied of residence during that earlier period, namely 1999 to 2001, but positively to suggest that the appellant was then living elsewhere. I say that because of his remark in the penultimate sentence of the judgment that the appellant may only have been living with Mrs Wall at the property “in between jobs”. This, of course, was a period when he had a job, namely with DLA Sheffield; and so it seems that, for reasons which he entirely fails to explain, the recorder was of a tentative view that the appellant was not resident there even then.

Can we see from the judgment that the recorder even recognised what Mr Tyson, on behalf of Sheffield, had conceded, namely that the appellant was resident at the property with Mrs Wall from July 2002 to June 2003? We cannot see that. It is not clear that the recorder even had that agreed fact in mind, which of course mopped up any issue in relation to 50 out of the 52 weeks required by the statute. The recorder never reminded himself that his focus should be upon residence during the crucial few days; and he never appraised the evidence and argument, pro and con, by reference to the real issue. He seems, as I have said, to imply that he did not accept that the appellant had established any residence at all during any part of the requisite 12 months.

Speaking for myself, I am driven with regret to the view that the issue raised for judicial determination was not adequately appraised by the recorder; and I suggest to my Lords that there is no option for this court other than to allow the appeal and to remit this matter for re-hearing before a full circuit judge of the Sheffield County Court. Mr Tyson has explained that, although when he filed his notice of appeal, the appellant sought a stay of execution, he never proceeded actively with that application and instead did yield possession of the property to Sheffield in February 2005. So, dependent upon the outcome favoured by the circuit judge on a proper appraisal of the issue, there may be doubts and complexities about the nature of the relief to be given to the appellant even were he to be substantively successful. Those are hypothetical problems which are not for us, but may be for the circuit judge; and I feel that there is nothing more which we can say about them.

LORD JUSTICE MAURICE KAY: I agree. The hearing before the recorder ranged far and wide, but in truth the only issue in the case centred upon the period from 22 June 2002 until, at the latest, 6 July 2002, a period of two weeks. That is the only period in the 12 months immediately preceding the death of Mrs Wall on 21 June 2003 when the appellant was not physically residing in the property. From the beginning of July 2002 he was residing there, and nowhere else. He had no other accommodation available to him. I do not discern in the judgment any evidence that the recorder focused on the crucial two-week period. Although the appellant was physically absent, and was seeing out the last days of his tenancy in London, his home in Sheffield was available to him and many of his belongings remained there.

At the heart of the issue, therefore, is the question of the appellant’s intention during that short time, as is made clear in Camden LBC v Goldenberg. One of the documents before the recorder was in the form of a reference from Michael Page, the well-known legal recruitment consultants. It was in these terms:

“Mr Wall registered with this agency on 11 June 2002. Our records show that he gave his home address as 18 Oldfield Terrace … He informed us he was shortly finishing a contract with DLA in London and was returning to his home in Sheffield. He asked us to find him a locum IT position around Sheffield or the neighbouring cities … as he intended to commute from home”.

That document was not mentioned by the recorder in his judgment. It seems to me to be consistent with an intention, in June 2002, to return to and to occupy the premises in Sheffield as the appellant’s home. In those circumstances it was a document of some potential significance.

Like my Lord, I am also concerned about the approach adopted by the recorder to the evidence of Pamela Harvey. He described it as “particularly important”, and from that I infer that it played a significant part in his conclusion. As has been described, it covers a short period in April 2003. Whatever Mrs Wall said to Pamela Harvey at that time about the temporary nature of the appellant’s residence in the house in Sheffield, the fact is that he was residing there at that time. Whatever his long-term intention may have been at that time, he had been living in the house and nowhere else since July 2002, and continued to live there and nowhere else until 21 June 2003 and beyond. In those circumstances I do not understand why the evidence of Pamela Harvey was accorded a “particularly important” role in the conclusion reached by the recorder.

I agree that we should allow this appeal, and that it will be necessary to order a retrial. Whether such a retrial in fact takes place is a matter for the parties. It may be, in the circumstances that have arisen, that they will find a way of resolving their difficulties without the expense and stress of a retrial. Those circumstances, of course, include the fact that the appellant has been out of the property for over a year.

LORD JUSTICE WARD: I agree with both judgments. Mr Tyson, to whom I give thanks for the way he has presented the case on behalf of the respondent, assures us that the issue defined by him for the judge’s adjudication was, firstly, as to whether or not the appellant had retained some physical evidence of continuing presence in the property, and secondly, whether he had, throughout the period of his sojourn in London, maintained an intention to return to the property. Those two issues are nowhere addressed by the judge, and I regret to say that, given the way the case was presented to him, his failure to focus on those two issues is sadly regrettable. It was, I am sorry to say, a wholly inadequate judgment, and it should be set aside accordingly.

If he had addressed those issues, he would have had to consider in addition to the mass of evidence already recited to us in our judgments the witness statement of Mr Richard Norman, the supervising partner, and two documents from DLA which were before the court. One was a letter of 12 July 2004 in which the firm confirmed that Mr Wall was employed at their Sheffield office from August 1999 to September 2001, and transferred to the London office later. That letter recites:

“Steven left our employment on 28/06/2002 at the end of a temporary contract [emphasis added]. At the time of employment our records show his address was given as 18 Oldfield Terrace, Stannington, Sheffield, S6 6EB and next of kin details were June Wall, Mother, of the same address”.

In another letter from DLA of 9 December 2004 the Human Resources Assistant of the firm confirms that he was employed during the dates I have recited:

“… having moved down from Sheffield to the London office on 31 August 2001. He was employed as a non-qualified solicitor on a 6 month fixed term contract … This contract ran from 1 September 2001 to 28 February 2002, and was extended until 28 May 2002. However, due to minimum notice requirements on his flat, his contract was further extended to 28 June 2002. Steven’s address is shown on our records as: 18 Oldfield Terrace, Stannington, Sheffield, S6 6EB.”

Coupled with the letter from the employment agency, that is highly material evidence of his intention at the material time, and it needed to be referred to in a proper judgment of the court.

Making every allowance for the fact this was an extemporaneous judgment, it was for the reasons given sadly deficient, and in the result I agree that the appeal must be allowed. It follows that the order of possession must be discharged, and the matter unhappily remitted back to the county court for retrial. That will be a highly artificial exercise, which I hope will never happen. I do recommend that these parties engage in some form of alternative dispute resolution in order to compromise the present difficulties that have arisen. The local authority will bear in mind our judgments and form a view as to their prospects of success on any re-hearing, and I hope Mr Wall will likewise adopt a realistic appraisal of what he can expect from any retrial in considering how this case can be settled. But settled it should be, and I hope it will be.