Hedgedale Ltd v Hards

Rent Act 1977, Schedule 1, para 3 — Statutory tenancy by succession — Meaning of ‘residing with’ in contrast with ‘living at’ — Position where period of physical separation during the six months immediately before original tenant’s death — Original tenant temporarily absent from the subject premises while recovering from effects of accident — Appeal allowed from decision of county court judge holding that the qualifying residence condition of para 3 of Schedule 1 had not been satisfied — Reasoning in judgment of Russell LJ in Foreman v Beagley followed One of the difficulties in this case, as mentioned by Sir Denys Buckley, was that the county court judge had not made precise findings as to certain material dates — Thus it was not clear exactly when the appellant moved into his grandmother’s flat — Subject thereto the factual background appears to have been as follows — The appellant was a young man born in 1969 who did not get on well with his stepfather, his mother’s second husband, but who had a good relationship with his grandmother — She had been the tenant of the subject flat since 1942 and was at the material times the statutory tenant of it — The appellant had left his stepfather’s house and moved into his grandmother’s flat at a date not precisely known but apparently shortly after the grandmother had suffered an accident and broken an arm rather badly — The appellant was able to help her in a number of ways and was pleased to get away from his stepfather — However, the task of looking after an elderly lady of over 80 with a broken arm was too much for a young man of 19 and the grandmother left her flat to stay for a time with her daughter, the appellant’s mother, and the stepfather — This stay lasted for about four months — In the meantime the appellant lived in the flat and it was his hope and intention to continue to live there when his grandmother returned, to look after her and to form with her a family unit — The grandmother’s hope and intention was the same — She returned to the flat at about Christmas 1987 and lived in the flat with her grandson as family — Unfortunately it was not to be for long; she died on May 1 1988 — If the qualifying period of six months for the purpose of para 3 of Schedule 1 was to be computed from Christmas 1987, it had not been completed in time The appellant’s application for a declaration that he was a statutory tenant by succession within para 3 of Schedule 1 failed before the county court judge — The judge considered that the four months which the appellant had spent on his own in the flat, while his grandmother was living with his mother, were a fatal disqualification — The judge rejected the argument that the appellant should be considered as residing with his grandmother during that period because he intended to look after her when she returned and with her agreement form a family unit — The judge said ‘I reject the argument that future intention can be elevated to present residence with her’ The Court of Appeal disagreed with this conclusion — In their view the quality of the appellant’s residence during the four months when his grandmother was temporarily absent was no different from its quality during the last four months when she was physically present in the flat — From the time when the appellant left his previous home with his mother and stepfather and took up his residence on a permanent basis in119 his grandmother’s flat he became resident there within the requirements of para 3 of Schedule 1 — This view was supported by the reasoning in Foreman v Beagley, although the actual result there was different — In the present case the appellant had been (1) a member of the original tenant’s family, (2) a person residing with the tenant at the time of her death and (3) so residing for a period of six months immediately before her death, despite her temporary absence for part of the time — Appeal allowed and declaration granted The following case is referred to in this report. Foreman v Beagley [1969] 1 WLR 1387; [1969] 3 All ER 838, CA This was an appeal by Derek Hards against an order made by Judge Batterbury, at Bromley County Court, granting Hedgedale Ltd, the landlords, possession of a flat at 79 Como Road, Forest Hill, London SE23. The appellant sought a declaration that he was entitled to occupy the flat as a statutory tenant by succession. David Platt (instructed by Armstrong & Co) appeared on behalf of the appellant; Charles Salter (instructed by Wilson Barca) represented the respondents. Giving judgment, PURCHAS LJ said: This is an appeal by Derek Hards (to whom I shall for simplicity’s sake refer as ‘the grandson’) against an order for possession of premises made by His Honour Judge Batterbury in favour of Hedgedale Ltd (to whom I shall refer as ‘the landlord’) in the Bromley County Court on February 22 1990. The premises concerned were 79 Como Road, Forest Hill, London SE23. The grandson seeks a declaration that he is a statutory tenant by succession within the provisions of para 3 of Schedule 1 to the Rent Act 1977. I pause to remark that the amendments introduced to that Act by the Housing Act 1988 do not apply to the circumstances in this appeal. The appeal raises a short but important point of law. It is convenient at the outset to refer to the two statutory provisions involved. Section 2 of the Rent Act 1977 provides that Part I of Schedule 1 shall have effect for determining what person, if any, is a statutory tenant of a dwelling-house at any time after the death of a person who immediately before his death was either a protected tenant of the dwelling-house or a statutory tenant by virtue of the preceding subsection. Schedule 1, para 3, omitting irrelevant matters provides that: . . . a person who was a member of the original tenant’s family was residing with him at the time of and for the period of 6 months immediately before his death then, after his death, that person . . . shall be the statutory tenant if and so long as he occupies the dwelling-house as his residence. The original tenancy was created in 1942, the tenant being a Mrs Phillips (to whom I shall refer as ‘the grandmother’). In about 1986, she, previously being a protected tenant, became a statutory tenant under the provisions of the Act. The history can be shortly stated for the purposes of this appeal, partly on common ground and partly on findings by the judge: 1  On September 2 1987 the grandmother had an accident — not the first of such accidents I remark — which resulted in a serious fracture of her arm. 2  She then moved temporarily to live with her daughter, that is the appellant’s mother, to recuperate. The circumstances in the home of the mother (who was then living with her second husband, the grandson’s stepfather) were that the grandson was not happy because, not unusually in these matters, he was at odds with his stepfather. Although there has been some argument about the order of the next events, for the purposes of the moment I shall record that the grandson moved to the premises, with which this appeal is concerned, which were and remain the grandmother’s home. Again there has been a dispute about this, but the judge found that certainly his intention was permanent, in the sense that he intended making his home with his grandmother when she returned to her home. They would live together there. 3  The grandmother returned at about Christmas 1987 and the grandson and grandmother lived together at the premises in circumstances which the judge found qualified within the provisions of para 3 of Schedule 1 saving only that the six months’ period was not completed because, on May 1 1988, unhappily, the grandmother died. The hearing took place over a period of nine months between May 23 1989 and February 22 1990. There were hearings on October 11 and December 4 as well as the two other dates. It is an unhappy example of the inconvenience caused by the listing difficulties in the county courts under the present arrangements. It could not have assisted the judge in his assessment of the evidence, which was by no means consistent even on the primary facts. The grandson called one witness on the first occasion to support his case, a Mr White. His case as pleaded failed to mention the fact that the grandmother had returned to her daughter’s home for a period of four months between early September (the date is not certain) and Christmas. Nor when giving his evidence did the grandson mention this. The grandson’s case was that she was living at the premises ‘continuously’, but there was a question as to whether he left his mother and stepfather before or soon after the grandmother left the premises. It was not until the final hearing, that is the fourth occasion, when the mother gave evidence that the court was told that the grandmother had returned temporarily to stay with the daughter while the grandson stayed on at the premises. Her evidence is important, since this omission to disclose the case on the part of the grandson has been relied upon by Mr Salter, for the respondents, in his submissions before us. The part of the note of her evidence-in-chief which is relevant to this matter reads as follows: Derek always lived with me. He moved out in August 1987, mainly because that would leave mum on her own if he did not. He did not get on with my second husband, Charles, who is West Indian. The move was to be permanent; I had lived with Charles since Derek was about 10 years old. In cross-examination she said that she telephoned Mrs Parker, who was the lady who arranged the home helps for the grandmother, and continued: I said that mother had broken her arm badly and that she will move in with me because Derek won’t be able to wash her. Mother was not at home because she was living with me from September 2 1987 until after Christmas 1987. In re-examination she said: When living with me from September 2 1987 to past Christmas 1987, my mother left her dogs behind. She intended to go back to Como Road. The judge carefully rehearsed this evidence and the other testimony dealing with these events. He referred to the evidence which I have just recited and said this: . . . It is implicit that Derek was there already in a caring role but a broken arm was too much to cope with. She then went on to say that her mother had moved to live with her. This lasted between September 1987 and Christmas 1987; in re-examination Mrs Williams said that Mrs Phillips’ dogs had stayed in the flat and I am certain that if there were someone there they would have to feed them — and quite probably every day. It was a long time ago when the respondent gave his evidence. He said that he had lived at 79 Como Road since August 1987; he is now 19, having been born on December 31 1969. His gran died at the age of 83 — and he lived with her in the two-bedroomed flat. ‘I moved in because she had shortly before broken her arm and she could not manage by herself.’  To which arm break was he referring?  The evidence speaks of two breaks — one in September 1987 and the other before Mrs Hooper moved in 1986 — If there are others the dates are not ascribed. He did not tell me that from September 2 1987 for over four months his gran had moved out to his mother’s. He then went on to tell me that she had angina and the shakes; he sorted out her pills and looked after her and ran messages for her. She could not do everyday chores; he described how he helped her — shopping, tidying up, walking dogs, getting her pension. Then he said ‘My great aunt lived there about one year before I did. She left after the divorce went through; gran lived in the flat until one week before her death. I last worked just before she died. Mother paid for me at weekends’. . . In cross-examination his mother said that he had ‘moved in’. He did not mind as he did not get on with his stepfather. He moved in with his clothes and for the duration of his gran’s lifetime. The home help came in but would not help me, he said. Then the judge referred to Mr White. He did not accept his evidence that the grandson moved in in July or August 1978. He went on to consider the options which he had to decide; first, that the grandson moved in before the break to Mrs Phillips’ arm; second, that he moved in after she broke her arm; third, that he moved in after her arm mended; and, fourth, he did not move in at all until it was too late to qualify. He then referred to the difficulties the witnesses had in their recollection and assessed the value of Mr White’s evidence. It is significant that, although he specifically mentioned the omission on the part of the grandson to refer to the grandmother’s absence for four months, the judge did not in any way include in his judgment criticism of the grandson as a witness or question his reliability as a witness. Later in his judgment, to which I shall come in a moment, the judge explained the position of the grandson in saying that the grandmother had resided throughout at the premises. Mr Salter has pressed on us that the judge should have taken an adverse view of the grandson and that that would rebut any criticisms of his findings which are the subject of this appeal. I must confess that, notwithstanding the forceful way in which Mr Salter made his submissions, I was not assisted by that particular support that he sought to give to the judgment in line with his respondent’s notice. I am satisfied that the judge assessed the evidence, was conscious of the inconsistencies and came to his own conclusion as to where the truth as to primary facts lay. It would be quite wrong, in my judgment, for this court to go behind such findings. I now turn to the part of the judgment where those findings are summarised. At the relevant page the judge says: The findings of fact involve accepting some evidence and rejecting other. My evaluation of witnesses falls to suit. In my judgment I am quite satisfied that the date on which the tenant broke her arm if not September 2 was very shortly before that and certainly within one cycle of home helps. Mrs Phillips did not allow the home help to come to an empty house. I accept Mrs Parker’s evidence that Alice called there until September 2 1987, depending on how often she came. Before any of this evidence was gone into I ought to add that back in last May the respondent told me ‘I moved in because she had shortly before broken her arm’ — in other words afterwards. That I believe is the truth of the position. It was an ingenuous answer right at the forefront of the evidence and was not calculated. He is a young man and I think you do remember if you are given the sudden and daunting task of looking after an old lady. Mrs Hooper’s evidence, or the parts I accept, does not conflict — but walks around the point. Mrs Williams’ evidence does conflict with it as she says that Derek moved out in August 1987 as he would have left her mother on her own. Mrs Hooper is wrong in saying that after she left that she returned almost every weekend — I accept Mrs Williams’ evidence that the tenant was not there. Now the respondent continued in evidence to explain what he did for the old lady, that has already been rehearsed. I see no reason to doubt and find as a fact that after Christmas the old lady went back to the flat; it was not an ideal solution but she was an indomitable person who would not be put off. The good thing was that the respondent was in a position to give her a hand, he having moved in shortly after she broke her arm. That being the case the essential facts are these: Mrs Hooper departs; tenant breaks arm; respondent moves in; tenant moves back; then sadly on May 1 1988 the tenant dies — . . . The issue to be decided now is with what quality is the respondent’s residence after she broke her arm to be invested? I pause there to state that, in my judgment, the judge posed the correct test at that point of his judgment. [The grandson’s] contention is that he can only have been ‘residing with’ the tenant on my finding that he was acting as a caretaker looking after the animals, keeping out burglars — which is undoubtedly a useful thing. As to his motivation generally it wasn’t just that he was willing to help gran, and immediately with the dogs, it was also that it gave him a great opportunity of getting away from home. He had lived with Mrs Williams’ second husband since the respondent had been 9 or 10. This was almost manna from heaven, therefore. He may have been a bit daunted by looking after the lady and cooking meals when his habit seems to have been staying in bed. My answer is a firm ‘yes’ — he was well-motivated when he moved out. As from the date when the old lady came back he resided with her within the meaning of para 3 to Schedule 1 of the Rent Act. But what of this period when living there on his own for four months?  His case was ‘I was residing with her as I intended to look after her when she came back and I was willing to caretake and feed and water the dogs.’  He was not therefore on his own. In my judgment such an argument is artificial upon the facts: the persons residing with the tenant were Mrs Williams and her second husband. They were residing with each other. I reject the argument that future intention can be elevated to present residence with her. That is the last quotation I seek to make from the judgment and it is at that point in the judgment that Mr Platt, for the appellant, has submitted that the judge fell into error in two respects. First, in finding that the tenant (the grandmother) was residing with her daughter and stepson and, second, in rejecting the argument that future intention can be elevated to present residence. Mr Platt further submitted that as the judge had not made a specific finding as to whether the grandson’s arrival at the premises preceded her departure or not, this court should draw an inference upon the facts found that it did. I would hesitate about this. There are certainly passages in the evidence, some of which I have recited in this judgment, that would support such an inference. There are also passages in the judgment upon which reliance could be made to indicate the way the judge’s mind was working. However, in this instance I am content that it is not necessary for me to determine the validity of Mr Platt’s second submission for the resolution of this appeal, which, in my judgment, can be dealt with under the main and central issue, namely what was the quality of the appellant’s residence during the four months before the grandmother’s return. We have been referred most helpfully to one authority among others but this is the important one, the case of Foreman v Beagley [1969] 1 WLR 1387. In that case a widow who was a statutory tenant was in hospital for the last three years of her life. Her son first came to her flat to air the premises but eventually appeared to take up residence there for the last year of her life. After she died he claimed to be entitled to remain in possession of the flat as a statutory tenant under the provisions of the preceding Act to that with which we are concerned. The judge made an order for possession against him on the ground that he was not ‘residing with’ his mother at the time of and for the period of six months immediately before her death. The defendant appealed and that appeal was dismissed. One of the relevant facts was a statement that if and when the mother returned to the premises the son, unless there was any good reason not to do so, would have departed. It is, I think, necessary for me to refer only to one extended passage from the leading judgment, which was delivered by Russell LJ at p 1390 in which he said: It would seem that in concluding that the defendant was not ‘residing with’ his mother, he considered that this could not be so ‘when she lived in hospital’. Thus shortly stated this seems to be a misdirection, and was not supported before us as a proper ground for the conclusion. It is wrong to say that a tenant away at hospital cannot for that reason be ‘resided with’. If a tenant spends the last two months of his life in hospital his widow at home would be residing with him at his death. The judge also, according to the note, said: ‘The whole purpose of this section is to protect the person who has made their home with an elderly relative when that person has died. I think it goes against the whole tenor of the Act to give the same rights to someone who takes advantage of an elderly relative.’ In so far as this may have been a ground for the decision this was not supported before us. For the defendant it was initially contended that if, for the purposes of the statute, the mother was residing at the flat, and the defendant was actually residing at the flat, it necessarily followed that for the purposes of the Act the defendant was ‘residing with’ his mother notwithstanding that they had never been physically together in the flat. This contention that ‘at’ plus ‘at’ must mean ‘with’ did not stand up and was not pursued. Suppose a dwelling which could not possibly accommodate more than one person, it would be clearly be wrong to say that a relation who moved in while the tenant was in hospital could be described as residing with the tenant so as to become successor and statutory tenant in respect of the dwelling when the tenant died in hospital six months later. Or suppose that on a tenant going to hospital a member of her family simply moved in without reference to or permission of the tenant and resided there for the relevant period, he could not be reasonably described as residing with her. For the plaintiff it was initially contended that ‘residing with’ was an impossibility when the two had never been in the dwelling-house at the same time. This contention was not pursued, I think rightly, on consideration of a hypothetical case in which, the daughter of a tenant mother having returned from Australia, the mother being in hospital, it was arranged between mother and daughter that they should share their lives in the mother’s dwelling-house, the daughter to move in at once and the mother to join her there as soon as she came out of hospital: in such case if the mother died still in hospital six months later there would have been a ‘residing with’. In the light of those considerations, can it be said that the defendant was ‘residing with’ his mother for the purposes of para 7 of the Schedule?  It is never very wise in these cases to generalise; but at the least it seems to me that, in the phrase in this context, the alleged second successor must be able to point to his situation as being a member of the tenant’s household. If at one time he actually lived with the tenant not for example as subtenant of part but as part of the tenant’s household, his continued residence during her absence in hospital would normally retain the quality of ‘residing with’ the tenant. His continued residence would take its colour from the past situation. If there were no previous physical coincidence of actual residence there might on the facts nevertheless be a ‘residing with’ as part of the tenant’s household, as in the example of the daughter from Australia and the tenant mother, in which case the colour of ‘residing with’ as a member of the mother’s household would come from the understanding and arrangement as to what the ‘set-up’ was designed to be. I gratefully and respectfully adopt those remarks by Russell LJ and for my part consider that they accurately reflect the law. 120 Mr Salter submitted that ‘residing at’ in law, and in this submission he was referring particularly to the earlier part of the extract which I have just cited, on the part of the grandmother during the four months’ absence and ‘residing at’ physically by the grandson at the premises could not amount to ‘residing with’ the grandmother on the part of the grandson. He submitted that there had to be physical joint residence at the beginning of the qualifying period in para 3 of Schedule 1. Although he accepted that had there been such a joint residence with the proper intention, then a supervening event leading to their physical separation, eg admission to hospital after an accident, would not destroy the quality of the residence enjoyed by the grandson. I cannot accept this distinction upon which Mr Salter’s submissions were based either in common sense or in logic. It does not accord with the example given by Russell LJ of the daughter returning from Australia while her mother was in hospital. In my judgment, the matter can be resolved without resort to any artificial, strained or illogical distinctions such as those suggested by Mr Salter. As I have already said, the judge posed the correct test but, unhappily, failed to apply it. In stating the proposition, in the extract from his judgment which I have cited, that the grandmother was residing with her daughter and stepson, that is at her daughter’s home and not at the premises, the judge fell into error if, by making this statement, he was indicating thereby that this was a reason for saying that the grandmother could not be residing at the premises for the purposes of residing with the grandson who was physically there. The test where the grandmother was residing depends upon her intentions to return to what was always her home and remained her home until the final few weeks of her life, and that the grandson in her intentions and plans would be there residing with her as part of her family. With respect to the learned judge, I have come to the conclusion that his attention was distracted from the real test which he had himself provided earlier when he discussed the position in the daughter’s home away from the premises, which on any version of the facts was a temporary one brought about by the grandmother’s physical incapacities resulting from the accident. Second, where the learned judge said that he was unable to accept the submission that ‘future intention can be elevated to present residence’ he also fell into error. The error was in excluding the intentions of the grandmother and of the grandson, either expressly or from the circumstances and the conduct of each of them as to the future use of the premises. This must always be an element in determining the quality of the residence of either or both of the relevant parties, namely the tenant grandmother and the putative statutory tenant by succession, the grandson, in the event of the grandmother’s demise. For example, if their intention was that the grandson should merely be a caretaker while the grandmother was temporarily absent, so that he could look after the dogs, ward off the burglars, keep the house warm, then there would be no residence established on the grandson’s part that would qualify under para 3 of Schedule 1. That was why the appellant failed in Foreman v Beagley, because there was clear evidence that, unless there had been some emergency, when the tenant returned the appellant was going to leave. There was no intention in Foreman v Beagley that the appellant would become part of the household of the statutory tenant. But if, as the judge found in this case, in relation to the post-Christmas four months, the intention was that the grandson should become a permanent member of the grandmother’s household, then the fact that the grandmother was temporarily absent would not detract from the quality of the residence at the beginning of the qualifying period any more than it would do if it had occurred as an intervening event during the latter four months when the judge had found, on the clearest possible evidence, that the residence did qualify within para 3 of Schedule 1. The critical consideration is that he was there physically in the premises during the first four months and intended to remain as a member of the household when his grandmother returned and, moreover, it is quite clear from the evidence that the grandmother’s intentions were the same, namely that she and her grandson would form a family unit occupying the premises for an indeterminate length of time. She was an elderly and frail lady, and it is not an over-extension that probably the intention was, as was said in the judgment, ‘for the rest of her life’. In my judgment, there is no reason to think that the quality of the residence was different during the first four months from the quality of the residence in the last four months, notwithstanding the absence of the grandmother at the beginning of the first period. I have already said that I cannot follow the logic or basis of the submission that, because the grandmother was not there at the beginning of the qualifying period, therefore in some way the ensuing quality of the residence was affected. I can see no ground for that basis. It follows, therefore, that, in my judgment, from the time that the grandson transferred himself from his previous home with his mother and stepfather and took up his residence on a permanent basis as the judge found at the grandmother’s home, he became resident there within the requirements of para 3 of Schedule 1 to the Act. There is no dispute that he was a member of the original tenant’s family, that he was there at the time of the death of the grandmother and, in my judgment, was also there for a period of six months immediately before the relevant death. I would, therefore, allow this appeal and grant the declaration sought in the notice of appeal. McCOWAN LJ agreed and did not add anything. Also agreeing, SIR DENYS BUCKLEY said: I just want to add an observation on a quite subsidiary matter. It was, in my view, unfortunate that the judge did not find precisely the date of the grandmother’s accident, the date on which the grandson moved into the grandmother’s flat and the date on which the grandmother moved to the mother’s home. Evidence on these matters was in several respects inconsistent and incapable of reconciliation. But the dates in question were important to the conclusion of the issues which the learned judge had to decide. I feel sympathy with his difficulty in making satisfactory findings. But he should, I consider, have endeavoured to find these facts. His failure to do so has made the determination of this appeal more difficult than it would or might otherwise have been. I agree that this appeal should be allowed. The appeal was allowed, with costs of appeal and below; leave to appeal to the House of Lords was refused.