Rent Act 1977, Schedule 1, Part I, para 3 — Claim to statutory tenancy by succession — Claimant was daughter of deceased statutory tenant and only question in dispute was whether she was residing with her mother at the time of and for the period of 6 months before her mother’s death — County court judge decided on the evidence that, although the claimant visited and cared for her mother during her last illness, she was not ‘residing with’ her mother during the 6 months preceding the latter’s death — Claimant appealed to the Court of Appeal — A number of authorities considered — The facts were that the claimant had a home of her own about two miles distant from her mother’s house where she lived with her son, aged 21, her husband having left in 1978 — She visited her mother regularly when the mother became seriously ill and for more than 6 months before her mother’s death moved into a spare room in her mother’s house in order to look after her, sleeping there, according to the judge’s finding, three or four nights a week — The claimant throughout retained the tenancy of her own house, paying the rent and other outgoings and the son continued to live there — Held by the Court of Appeal that the claimant did not satisfy the requirement of ‘residing with’ her mother within the meaning of the Act — The claimant had retained her settled home in her own dwelling-house and had not ‘made her home’ with her mother, whom she had visited on a regular basis to give care in her illness — The fact that the claimant had a permanent home in which she intended to live in the foreseeable future was not ipso facto fatal to her claim, but it was a matter to be taken into account in a case which was essentially one of fact and one of degree — The claimant here moved in for a limited time and for a limited purpose and the judge, who had heard all the evidence, was entitled to conclude that the claim had failed — Appeal dismissed
The following
cases are referred to in this report.
Collier v Stoneman [1957] 1 WLR 1108; [1957] 3 All ER 20, CA
Foreman v Beagley [1969] 1 WLR 1387; [1969] 3 All ER 838, CA
Hampstead
Way Investments Ltd v Lewis-Weare [1985] 1
WLR 164; [1985] 1 All ER 564; [1985] 1 EGLR 120; (1985) 274 EG 281, HL
Morgon v Murch [1970] 1 WLR 778; [1970] 2 All ER 100, CA
Neale v Del Soto [1945] KB 144; [1945] 1 All ER 191
Peabody
Donation Fund Governors v Grant (1982) 264
EG 925, [1982] 2 EGLR 37, CA
This was an
appeal by Mrs Sheila Elliott, defendant in an action for possession of a
dwelling-house at 49 Wellington Road, East Ham, London E6, from a decision of
Judge Dobry at Bow County Court in favour of the landlords, Swanbrae Ltd,
present respondents.
T Gallivan
(instructed by Wiseman Greenman & Lee) appeared on behalf of the appellant;
Roger McCarthy (instructed by Wallace Bogan & Co) represented the
respondents.
Giving the
first judgment at the invitation of Kerr LJ, SWINTON THOMAS J said: This is an
appeal against a judgment of His Honour Judge Dobry given at the Bow County
Court on February 18 1986. On that day Judge Dobry ordered that the plaintiff,
Swanbrae Ltd, do recover against the defendant, Mrs Sheila Elliott, possession
of a dwelling-house, 49 Wellington Road, East Ham, London E6. The plaintiffs
are the owners of the freehold of the premises and in October 1948 their predecessors
in title granted a tenancy to a Mr Binns, the defendant’s father, and Mrs
Elizabeth Mary Wood, the defendant’s mother. Mr Binns died on September 20 1981
and Mrs Wood died on April 20 1985. The plaintiffs issued their particulars of
claim in the Bow County Court claiming possession on August 12 1985. The
defence was filed on September 3 1985. In the defence and the further and
better particulars thereto dated December 9 1985 the defendant claimed that, by
reason of the provisions of Part I of Schedule 1 to the Rent Act 1977, she was
the successor to her mother, Mrs Wood, and was accordingly entitled to a
statutory tenancy of the premises. It was and is common ground that she is
entitled to such a tenancy if, pursuant to para 3 of Part I of Schedule 1 to
the Rent Act 1977, she was a member of the original tenant’s family who ‘was
residing with him at the time of and for the period of six months immediately
before his death’. There was no dispute that the defendant was a member of Mrs
Wood’s family or that, to use a neutral term, she had been staying at the
premises for a period in excess of six months prior to her mother’s death on
April 20 1985. There was no dispute that Mrs Wood was the statutory tenant of
the premises. The sole dispute was whether Mrs Elliott ‘was residing with’ her
mother for the requisite period.
Mrs Elliott
lived at 49 Wellington Road as her home with her parents until she married at
the age of 21. In about 1971 or 1972 she and her husband went to live at 4
Gainsborough Avenue, Manor Park, London E12. Mr Elliott was the tenant of those
premises. He left in about 1978, leaving Mrs Elliott and their son, who is now
aged 21, living at the premises. In 1983 Mrs Wood became ill with cancer. 4
Gainsborough Avenue and 49 Wellington Road are about two miles apart from one
another and after her mother became seriously ill Mrs Elliott visited her
regularly. In September 1984 she moved into 49 Wellington Road, at least on a
part-time basis, in order to look after her mother. She retained the tenancy of
4 Gainsborough Avenue and her son continued to live there.
At this point
the judge’s findings of fact are, in my view, important. In relation to 4
Gainsborough Avenue the judge said: ‘No doubt she has a secure home there but I
am not dealing with Gainsborough Avenue except indirectly.’ He found Mrs Elliott to be a truthful witness
and said that she looked at 49 Wellington Road as her home in the sense that
her mother and her parents had lived there and she had lived there since the
age of 3. I think that the judge clearly meant that Mrs Elliott regarded 49
Wellington Road as her home prior to her marriage. In relation to the crucial
period between September 1984 and Mrs Wood’s death in April 1985, the judge
said:
Mrs Elliott
tells me and I entirely accept it that in September 1984, she ‘moved’ to stay
and sleep upstairs in the spare bedroom at 49 Wellington Road. I find as a fact
that she slept there regularly from September until her mother’s death at least
three to four nights a week but her evidence puts it a little higher, five or
six nights a week over the material period.
We have notes
of the evidence given, but it has to be borne in mind that they are notes only.
Mrs Elliott is recorded as having said in evidence that from September 1984 onwards
she spent three or four nights per month only at Gainsborough Avenue. The
amount of time which Mrs Elliott spent at 49 Wellington Road was very much in
issue and a Mrs Savage, who is a warden employed by the local authority,
said that on a visit which she made to Mrs Wood Mrs Elliott had told her that
she lived at Manor Park and did not live at Wellington Road. That evidence is
recited by the learned judge and was clearly accepted by him. Although the
learned judge accepted Mrs Elliott’s evidence as a matter of generality, he
was, in my judgment, clearly entitled on the evidence to come to the
conclusion, having heard all the evidence, that Mrs Elliott slept at 49
Wellington Road from September 1984 onwards three or four nights a week as
opposed to the five or six nights a week stated by her. Mrs Elliott continued
to pay the rent and the outgoings on the home at Gainsborough Avenue. Her post
continued to be sent to 4 Gainsborough Avenue. When giving the relevant
information to the Registrar of Births and Deaths she gave her ‘usual address’
as 4 Gainsborough Avenue, Manor Park, E12. It was in these circumstances, put
shortly, that the learned judge had to resolve whether or not for the material
period Mrs Elliott was ‘residing with’ her mother at 49 Wellington Road.
I now turn to
consider the relevant law. Section 2(1)(a) of the Rent Act 1977 provides:
After the
termination of a protected tenancy of a dwelling-house the person who,
immediately before that termination, was the protected tenant of the
dwelling-house shall, if and so long as he occupies the dwelling-house as his
residence, be the statutory tenant of it.
I have already
recited the relevant provisions of para 3 of Part I of the First Schedule.
In Collier
v Stoneman [1957] 1 WLR 1108, the headnote reads:
L, who was the
grandmother of the plaintiff, was the statutory tenant of a flat consisting of
two rooms and a kitchen on the first floor of a dwelling-house. In 1950 L
allowed the plaintiff and her husband, who had no matrimonial home, to live in
the back room of the flat, in which they had been allowed to store their
furniture since 1947. The arrangement was that the plaintiff and her husband
had the back room to themselves. L had the front room to herself and the
kitchen was shared between them. L, who was 94 at the time of her death in
October 1956, kept very much to her own room and did most of her own shopping
and cooking and only occasionally shared a meal in the kitchen with the
plaintiff and her husband.
In an action
by the plaintiff against the defendant landlord claiming a declaration of her
title to a statutory tenancy of the flat on the same terms as that held by L at
the time of her death, the county court judge held that, on the facts as found,
the plaintiff was not ‘residing with’ L at the time of her death within the
meaning of section 12(1)(g) of the Increase of Rent and Mortgage Interest
(Restrictions) Act, 1920, and dismissed the action.
On appeal:–
Held, that inasmuch as L had not granted a sub-tenancy of the back room
to the plaintiff, the plaintiff was at all material times ‘residing with’ her
grandmother within the ordinary meaning of those words, which was the meaning
to be placed upon them for the purposes of section 12(1)(g), and that,
accordingly, she was entitled to the relief claimed.
Jenkins LJ
cited a passage in a judgment of Lord Evershed MR in Neale v Del Soto
[1945] KB 144 in which the Master of the Rolls said that the words ‘residing
with’ must be given their ordinary popular significance. They do not involve
any technical import or have some meaning only to be defined by lawyers. The
fact that the words must be given their ordinary natural meaning does not
necessarily make the task in a case such as the present case any easier. At p
1113 Jenkins LJ said:
The
arrangement being of this nature, it seems to me that the Colliers were plainly
residing with Mrs Langshaw according to the ordinary meaning of that
expression.
Sellers LJ at
p 1118 said:
The
grandmother, as tenant, had control of the premises, and I find it difficult to
see how, without a tenancy of their own, the plaintiff and her husband, making
their home there, could be said not to be residing with grandmother up to the
date of her death.
There is, in my
view, an important factual distinction between that case and the present case
in that, unlike the Colliers, Mrs Elliott does have a tenancy of her own.
Further, in my judgment, the words used by Sellers LJ ‘making their home there’
are important words.
In Foreman
v Beagley [1969] 1 WLR 1387, the headnote is as follows:
A widow, the
statutory tenant of a dwelling-house, 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 statutory
tenant and second successor under Schedule 1 paragraph 7 to the Rent Act 1968.
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.
On the defendant
son’s appeal:–
Held, dismissing the appeal, that the defendant had not been ‘residing
with’ his mother within the meaning of para 7 of Schedule 1 to the Rent Act
1968, and, therefore, he could not be regarded as the second successor and
statutory tenant of the dwelling-house.
At p 1391
Russell LJ (as he then was) said:
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.
Then, a little
later:
. . . there
is insufficient evidence to show that the defendant moved in and was permitted
by his mother to move in with a view to establishing a household.
Sachs LJ at p
1392 said:
To my mind
the words ‘residing with’ import some measure of factual community of family
living and companionship.
Then later:
‘residing
with’ is something more than ‘living at’ even when the premises become a
person’s normal postal address.
In Morgon
v Murch [1970] 2 All ER 100, the headnote is:
The
defendant’s father was the statutory tenant of a dwelling-house owned by the
plaintiff. When the father died, his widow, the defendant’s mother, became
first successor to the tenancy. The defendant had originally lived in the house
with his parents but in 1955 after his marriage he had moved to a council
house. On 4th November 1967, the defendant left his wife and children and went
to live with his mother. In April 1968, the wife obtained an order from the
justices who found that the defendant had been guilty of cruelty to the wife
and had deserted her on 4th November 1967. Despite requests by his wife to do
so, the defendant took no steps to have the tenancy of the council house
transferred to her name. On 27th June 1968, the defendant’s mother died and the
defendant continued to live in the house. The plaintiff brought proceedings in
the county court and obtained an order for possession of the house. The
defendant appealed. On the question whether the defendant had been residing
with his mother for the period of six months immediately preceding her death so
as to enable him to succeed to the statutory tenancy by virtue of para 7 of Sch
I to the Rent Act 1968,
Held — The word ‘reside’ in the 1968 Act must be given its ordinary,
natural, common language meaning (see p 103 d, post); the defendant was living
with his mother in the sense that he was making his home with her, during the
material period, during that time he had made no move to become reconciled with
his wife and there had been no immediate prospect of his return to the
matrimonial home; accordingly he was entitled to succeed to the statutory
tenancy.
At p 103 Winn
LJ said that in his view the word ‘reside’ was synonymous with the words ‘live
at’. That is, of course, contrary to the view expressed by Sachs LJ in Foreman
v Beagley and, if it is necessary for me to do so, and with the greatest
respect, I agree with the view of Sachs LJ that ‘residing with’ is something
more than ‘living at’. Winn LJ then continues:
In my opinion
there is no doubt at all that the learned judge here made a finding, or drew an
inference, which he was only qualified to draw, or purported to be qualified to
draw, as a lawyer, since he posed to himself a test which he was regarding as a
test having validity in law. He was not merely finding an inference of fact
from primary facts established by his own findings. In my personal opinion he
erred in that he took, as his crucial test, and the dominant criterion, the
question whether or not the defendant had abandoned, and intended no longer to
return to, his own former living place or — I have to use the word — residence.
The judge
posed to himself correctly, and then later, in my respectful opinion,
incorrectly, the problem which he had to answer. He said:
‘. . . the
problem now is whether the defendant is entitled to claim that he was residing
with her at the time and had been for six months before her death . . .’
That is a
correct statement of the problem. Later he said’. . . the problem is whether
for six months he has been occupying the dwelling as his residence’. He said
again, still later in the judgment:
‘The important
word is residing which requires reasonably permanent residence — seven months’
residence was not enough unless he gave up his own home. Had the defendant
given up his home?’
In my
respectful opinion, with all respect to the learned county court judge, that is
a misdirection since a man may, in law, have more than one place in which he
resides as well as more than one place in which he lives. He may have a house
in London, he may have a house in the country, he may have a house in New York,
he may have a house also at Florida, he may have a house in New England, and it
may well be that it would be right to say of him in fact and in law that he
resides in each of those places, if he spends time in them of which it can be
postulated that the time which he spends there, and the intention which he has
when he spends it, is more than is comprised in and directed to the paying of a
temporary visit.
Peabody
Donation Fund Governors v Grant (1982) 264
EG 925, [1982] 2 EGLR 37 is a
provides that a person is qualified to succeed the tenant under a secure
tenancy if he occupied the dwelling-house as his only or principal home at the
time of the tenant’s death and either (a) he is the tenant’s spouse or (b) he
is another member of the tenant’s family and has resided with the tenant
throughout the period of 12 months ending with the tenant’s death. The
defendant lived with her mother and stepfather in Salisbury. Her father became
ill and the defendant went up to live with him for a large proportion of the
week. She said in evidence, which was accepted, that she came to regard the
flat in London as being ‘her home’. It should be noted that she did not have a
home of her own. The judge found that the defendant occupied the flat as her
home at the time of her father’s death. He was satisfied that there was a
sufficient measure of, as he put it, factual community of family living and
companionship to constitute residence with the father. The Court of Appeal held
that the judge had not erred in any way in the conclusions which he reached on
the facts of that case.
In Hampstead
Way Investments Ltd v Lewis-Weare [1985] 1 WLR 164, the headnote
reads:
In 1970 the
statutory tenant of a flat married, and his wife and stepchildren came to live
with him there. In 1978 they purchased and moved into a house nearby. The
tenant, however, retained one room in the flat for the sole purpose of sleeping
there five times a week on his return from work at a nightclub in the early
hours of the morning, so as not to disturb his family. He paid the rent and all
the outgoings apart from the gas bill which was paid by his adult step-son who
occupied the remainder of the flat. The tenant kept his clothes in his room and
had his mail addressed to the flat but never had any meals there. The landlord
claimed possession of the flat on the ground that the tenant no longer occupied
the flat as his residence within the meaning of section 2(1)(a) of the Rent Act
1977. In the county court, the judge dismissed the application but the Court of
Appeal allowed the landlord’s appeal and made an order for possession.
On appeal by
the tenant and stepson it was:
Held, dismissing the appeal, that while a person could occupy two
dwelling-houses ‘as his residence’ within the meaning of section 2(1)(a) of the
Act of 1977, where he occupied one of them only occasionally or for limited
purposes, it was a question of fact and degree whether he occupied it ‘as his
residence’; that the tenant’s limited use of the flat was insufficient to
amount to occupation of it as a residence and accordingly his tenancy was not
protected.
When
considering an appeal from a judge of first instance who has heard the evidence
it is very important, in my view, for this court to bear in mind that questions
of ‘residence’ and ‘residing at’ are very much ones of fact and degree. A judge
must view the quality of the residence alleged and come to a conclusion upon
the totality of it as to whether in truth it falls within the proper usage of
the term ‘residing with’.
In his notice
of appeal on behalf of the defendant/appellant Mr Gallivan makes a number of
criticisms of the learned judge’s judgment. On p 3 of his judgment the judge
quotes a passage from Morgon v Murch (supra) and poses what is,
in my view, the correct test, namely whether the defendant is entitled to claim
that she was residing with her (the mother) at the time and had been for six
months before her death. He then goes on in the next passage to say:
I should add
that it was submitted by counsel for the plaintiff in my view correctly that if
a person intends to return to her abode or does not make a decision as to her
future while living at her mother’s house she cannot be classified as a person
‘residing with’ her mother.
Mr Gallivan
criticises that passage and says that it is wrong and that therefore the judge
posed the wrong test. Taking the passage alone as it stands, it is open to some
criticism. If a person intends to return to her abode, in this case 4
Gainsborough Avenue, that may well be a relevant factor in deciding whether she
is ‘residing with’ her mother at 49 Wellington Road. It may also be a factor
that she had not ‘made a decision as to her future while living at her mother’s
house’. However, as was made clear in Morgon v Murch, the
defendant does not have to establish that she has been residing with her mother
with an intention to reside there indefinitely in the sense that she would not
intend ever to move away. She has to establish merely that for the relevant
period she was residing with her mother. I shall say a word or two more about
intention below. As I have said, the learned judge posed the correct test in
the immediately preceding paragraph and I am satisfied that what the judge
meant in the passage which is criticised is that Mrs Elliott did indeed have a
settled abode and residence at 4 Gainsborough Avenue, and that if in those
particular circumstances she intended to return to her abode and had not made a
decision as to her future then she could not be classified as a person residing
with her mother.
On the next
page of his judgment there is a further passage which is criticised by Mr
Gallivan. The learned judge said: ‘I cannot disregard the fact that she had
another home which she maintained as her sole residence.’ I think, with respect, that some criticism
might be made of the word ‘sole’. However, as was pointed out by my lord Kerr
LJ in the course of submissions, it is quite correct that there was one house
only which Mrs Elliott maintained in the sense of paying the rent, rates, and
outgoings, namely 4 Gainsborough Avenue.
Mr Gallivan
further criticises the learned judge’s finding that ‘residing with’ connotes an
element of intention. Winn LJ in Morgon v Murch specifically
refers to ‘the time which he spends’ there and the intention which he has when
he spends it’. The words of Sellers LJ, ‘making their home there’, the words of
Russell LJ, ‘being a member of the tenant’s household’ and the words of Sachs
LJ, ‘some measure of factual community of family living and companionship’ all
suggest an element of intent. Although intent is, in my judgment, a relevant
factor, none the less the question of whether or not it has been established
that the defendant was or was not residing with her mother over the relevant
period must be judged objectively on all the facts of the case.
The learned
judge said on p 4 of his judgment:
I have to
decide on the evidence of Mrs Elliott whether the test of intention and
residence with her mother is satisfied. I regret that I have to find Mrs
Elliott was not a resident within the meaning of the relevant paragraph. I find
that she came to live there with intention of helping her mother as a dutiful
daughter would. At that stage and at no time until after her mother died did
she form an intention to reside in those premises.
Then a little
later:
The question
whether for the purpose of the relevant paragraph a person ‘residing with’ can
have another residence does not arise as I have found that Mrs Elliott did not
reside with her mother within the meaning of the Act because she did not have
the necessary intention.
Was the learned
judge right? I have not found this case
an easy one and I confess that my mind has wavered from time to time in the
course of argument. I have no doubt that this was in part caused by the clarity
and, if I may say so, ability with which the submissions on both sides were
made.
The Oxford
English Dictionary defines ‘reside’ as ‘having one’s home, dwell
permanently’. Clearly, for reasons already canvassed, the words ‘reside with’
in the context in which they are used in the Rent Act 1977 do not mean dwell permanently
in the sense of dwell indefinitely. They certainly mean something more than
dwell transiently and to my mind they have the connotation of having a settled
home. A person may reside with a relevant relative for the requisite period but
none the less have an intention to move away at some later stage. However, I do
think, with Sellers LJ in Collier v Stoneman, that the words
‘have one’s home’ are very helpful. A person may well, of course, have more
than one home, although he does not usually do so. As Winn LJ said in Morgon
v Murch, a person may have more than one residence. In my view the
person claiming the statutory tenancy must show that he or she has made a home
at the premises which they are claiming and has become in the true sense a part
of the household. In this case Mrs Elliott had lived at 49 Wellington Road for
a limited period. She did not spend all her time, by any means, at that
address. She had a settled home at 4 Gainsborough Avenue. She went to 49
Wellington Road for the purpose of caring for her mother who was ill. Her son
remained at Gainsborough Avenue. Having considered this case with great care
during the submissions and for some period of time since, I have come to the
conclusion that it was not established by Mrs Elliott that she had made a home
at 49 Wellington Road or that in any true sense she had become part of her
mother’s household there. Accordingly, in my judgment the judge was right to
conclude that she was not residing with her mother within the meaning of the
relevant paragraph. Further, it always has to be borne clearly in mind in a
case of this nature that a judge sitting in the county court has heard all the
evidence and neither the notes which he takes nor his judgment can encompass
the totality of the evidence. In a case such as this, which is essentially one
of fact and one of degree, the judge of first instance has an opportunity of
making a judgment on the evidence which is denied to this court. Despite the
formidable arguments put forward by Mr Gallivan, I do not think it has been
shown that the learned judge was wrong and I would dismiss this appeal.
Agreeing, KERR
LJ said: The feature which distinguishes this case from all the authorities to
which Swinton Thomas J has referred is that Mrs Elliott undoubtedly had her own
home at 4 Gainsborough Avenue, Manor Park, throughout the period that she
claims that she was residing with her mother so as to satisfy the statutory
requirement on which she relies. Her mother’s house, 49 Wellington Road, East
Ham, was not her home in any relevant sense of the word, but only in the sense
that it had been her childhood home, that some of her belongings were still
there, and that she was a constant visitor, since the two addresses were only
about two miles apart.
The fact that
Mrs Elliott had a permanent home of her own, in the sense that she evidently
could, and intended to, live there for the foreseeable future, that her son and
furniture were there, and that she had no plans at any relevant time for giving
it up, is not necessarily fatal to her claim that she was nevertheless
‘residing with’ her mother during the six months before her mother’s death. As
pointed out by Winn LJ in Morgon v Murch, a person can have more
than one home and more than one residence. But the existence and continuing
availability of Mrs Elliott’s ‘permanent’ home, simultaneously with the claimed
residence elsewhere, distinguishes the present case drastically on its facts
from Morgon v Murch. Such a state of affairs is bound to render
it far more difficult for a defendant to satisfy the test of having ‘resided
with’ a member of his or her family for the necessary period at the same time.
The reason is that ‘residence’ must connote more than physical presence during
the required period, albeit as a member of the household. This is consistent
not only with the dictionary definition of ‘reside’ which Swinton Thomas J has
cited but also with the social purpose of the legislation. I think that the Peabody
case is much closer to the present case on its facts than Morgon v Murch,
since the defendant was there to some extent based in two premises at the same
time, though neither was owned or rented by her, and she was effectively in the
process of transferring herself from one to the other. That was a borderline
case (see per Sir David Cairns), but the facts of the present case are
much less favourable to Mrs Elliott. While I certainly do not exclude the
possibility that a defendant who has his or her own home — in the fullest sense
of the word — elsewhere may nevertheless satisfy the test of this legislation,
such cases will inevitably be rare.
The judge
regarded Mrs Elliott as a ‘visitor’, for want of a better word. One of the
dictionary meanings of ‘visit’ is ‘temporary residence with person or at
place’. For want of a better word, I think that Mrs Elliott was a visitor, a
temporary resident, but without having made her home with her mother, within
the ordinary and dictionary meaning of ‘residing with’ her. Her position can
hardly be put better than she did herself, entirely frankly, in her evidence,
when she said: ‘I moved in with my mother for so long as was necessary.’ Having regard to the existence and
availability of 4 Gainsborough Avenue, to which she returned for odd days and
nights throughout the six-month period, that sentence describes no more than
what one would usually refer to as ‘staying with her mother’ in order to look
after her. She moved in for a limited time and for a limited purpose. In my
view, that is clearly not sufficient and I would equally dismiss this appeal.
The appeal
was dismissed with costs, not to be enforced without further order; legal aid
taxation of defendant’s costs.