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Rogers v Islington London Borough Council

Housing — Housing Act 1985 — Multiple occupation — Whether nine occupiers of property a single household — Whether property a house in multiple occupation — Whether all factors in Barnes v Sheffield City Council relevant

The respondent was the freehold owner of a
building containing 10 bedrooms on four different floors, a kitchen and a
bathroom in the basement, a living room on the ground floor and a second
bathroom on a half‑landing. The property was let out under individual
oral agreements for unspecified periods to up to nine single adults at a time.
On 25 March 1997 the appellant council, claiming that the property was a house
in multiple occupation, served a notice to execute works pursuant to section
352 of the Housing Act 1985. Following the respondent’s appeal against the
notice to the county court, the recorder decided that the property was not a
house in multiple occupation. The council appealed and sought judicial
clarification, in addition to that in Barnes v Sheffield City Council
(1995) 27 HLR 719, as to the meaning of a house in multiple occupation.

Held: The appeal was allowed. There were two crucial distinctions
between the present case and Barnes v Sheffield City Council. In Barnes,
the occupants numbered only four or five; in the present case there were
nine (or 10 if the room reserved for the respondent was counted). Second, in Barnes
the occupying students were a preformed group for a predetermined period,
whereas in the present case the occupants came to the property one by one,
mostly for indefinite and, necessarily, for dissimilar periods. However much
weight might be attached to their communal life while they were there, the
relationship between the numerous and shifting occupants of the property was
insufficient to form a single household. The property was not different from an
ordinary lodging house: it was a house in multiple occupation. There were two
important factors for consideration: the physical arrangements and the nature
of the relationship between the occupiers. The working test derived from Barnes
was that where a small group of students at the same university join
together to occupy a house or flat for the period of the academic year they
will usually form a single household. However, the nine factors considered in Barnes
for identifying a single household would not all always be relevant in
other cases.

The following cases are
referred to in this report.

Barnes v Sheffield
City Council
(1995) 27 HLR 719

Simmons v Pizzey
[1979] AC 37; [1977] 3 WLR 1; [1977] 2 All ER 432; (1977) 36 P&CR 36; 75
LGR 583, HL

This was an appeal by
Islington London Borough Council from a decision of Mr Recorder McIntyre in
Clerkenwell County Court, who had allowed an appeal by the respondent, Guy
Rogers, against a notice served by the council under section 352 of the Housing
Act 1985.

Robert Jay QC and Kelvin Rutledge (instructed by
the solicitor to Islington London Borough Council) appeared for the appellants;
the respondent appeared in person and was not represented.

Giving the first judgment, NOURSE LJ said: This appeal
requires us to give renewed consideration to the meaning of ‘house in multiple
occupation’ in Part XI of the Housing Act 1985 as amended. By section 345(1) of
the Act that expression is defined to mean:

a house which is occupied by persons who do not
form a single household.

The definition was last considered by this court
in Barnes v Sheffield City Council (1995) 27 HLR 719.

A brief account of statutory control in relation
to houses in multiple occupation (HMOs) is to be found in the commentary to
Part II of Chapter V of the Housing Act 1996 in the Encyclopedia of Housing
Law and Practice
:

Controls over [HMOs] were first introduced in
1958, and the powers were extended on no fewer than three occasions during the
1960s. Further amendments were made in the 1980s. Since the first controls were
introduced it has been recognised that HMOs represent a particular housing
problem, and the further powers included in this Part of the Act are a
recognition that the problem still continues. It is currently estimated that
there are about 638,000 HMOs in England and Wales. According to the English
House Condition Survey in 1993, four out of 10 HMOs were unfit for human
habitation. A study for the Campaign for Bedsit Rights by G Randall estimated that
the chances of being killed or injured by fire in an HMO are 28 times higher
than for residents of other dwellings.

The high or very high risks from fire to occupants
of HMOs is confirmed by the study entitled Fire Risk in HMOs, a summary
report to the Department of the Environment, Transport and the Regions prepared
by Entec UK Ltd in November 1997. HMOs can also present a number of other risks
to the health and safety of those who live in them, such as structural
instability, disrepair, damp, inadequate heating, lighting or ventilation, and
unsatisfactory kitchen, washing and lavatory facilities. It is of the greatest
importance to the good of the occupants that houses that ought to be treated as
HMOs do not escape the statutory control.

In Simmons v Pizzey [1979] AC 37
Lord Hailsham of StMarylebone, in a speech with which Lord Wilberforce,
Lord Fraser of Tullybelton and Lord Keith of Kinkel agreed, having referred to
earlier judicial definitions of ‘household’, said at p59F:

I do not find any of these references
particularly helpful except to make clear to me what I would have supposed in
any case that both the expression ‘household’ and membership of it is a
question of fact and degree, there being no certain indicia the presence or
absence of which is by itself conclusive.

The question of whether a house is one that is
occupied by persons who do not form a single household is, without doubt, one
of fact and degree, to which the answer may vary between different cases
according to fine distinctions of fact. But to leave it there is of little help
to busy environmental housing officers, who need a good working test
to guide them in their day-to-day decisions as to whether houses are subject to
the statutory control or not. It may have been partly with that purpose in mind
that in Barnes v Sheffield City Council Sir Thomas Bingham MR,
with whose judgment Peter Gibson and Saville LJJ agreed, considered nine
different factors that counsel for the house owners had suggested might assist
in the determination of individual cases. At p723 he said:

I would for my part wish to make clear that the
order of these factors should not be regarded as significant and that the
weight to be given to any particular factor will vary widely from case to case
depending on the overall picture. It would in my judgment be wrong to do what
Lord Hailsham rightly said could not be done and suggest that there was a
litmus test which could be applied to determine whether a house was being
occupied as a single household or not. Nonetheless, I do regard these factors,
in whichever order they are taken, as being helpful.

The Master of the Rolls then went through the
factors one by one, considering each of them in relation to the particular
facts and most of them more generally as well. He clearly thought that some of
them were of little actual or potential significance, referring to more than
one ‘so far as it goes’ or in other qualified terms. Other considerations
apart, he was evidently paying counsel the judicial courtesy of dealing with
all his arguments, whatever their relative merits. I do not think it necessary
to set out the factors again. But the facts of that case, to which I will
return in due course, are important. At this stage, it is enough to say that
the county court judge had held that the house was not an HMO and that his
decision was affirmed by this court.

Even if it were open to us to question the
decision in Barnes v Sheffield City Council, I would not do so.
As will appear, I respectfully think that the case was correctly decided. But
it is said that ‘the Barnes factors’ have caused serious problems for
local housing authorities. Thus, in para 24 of a consultation paper entitled Licensing
of Houses in Multiple Occupation — England
published by the department in
April 1999 we find this:

Although the court set out a number of factors
that could help determine whether occupants are living as a single household —
such as whether they came to the tenancy, eat and shop for food together or
separately — no indication was given of the weight that should be attached to
each of these factors. As a result of this judgment, authorities are wary of
attempting to use their HMO powers in shared houses particularly in those
occupied by students.

We have been told that the appellants in this
case, Islington London Borough Council (the council), have received letters of
support for their appeal, and, in particular, representations as to the need
for judicial clarification of the approach to be applied by environmental
health officers, from 17 other local health authorities and several other
interested bodies. While acknowledging the dangers inherent in seeking further
to define the indefinable, I readily agree that some further attempt at
clarification is desirable.

In a case such as the present, where it is plain
that the property is a ‘house’, the determinative word in the definition is
‘household’. Where a house is occupied by more than one person, I do not think
that the occupants can be said to form a single household unless there is
between them a relationship that provides a particular reason for their living
in the same house. Obvious examples of such relationships are family,
employment and long-standing friendship. In some households, two or even three
of such relationships may exist together; for example, a household consisting
of parents with young children, a nanny and an old friend of the parents. In
other households, none of those relationships may exist; for example, a
household with one or more paying guests who live as part of the family. In
cases such as these, there will usually be little difficulty in recognising the
occupants as forming a single household.

The difficulty comes when there is no such
relationship as those already mentioned. In order to identify the difficulty it
is helpful to start by referring to the facts in Barnes v Sheffield
City Council
. I take them from the judgment of the Master of the Rolls at
p721:

The house in question is described as a small,
turn of the century mid-terrace house. On the ground floor there are two rooms.
One of those has at all times been used as a kitchen and dining room. The other
room was between 1991 and 1992 used as a bedroom but has since then been used
as a sitting room. On the first floor there is a bathroom with a lavatory and
also two bedrooms, one of them small. On the second floor there are two attic
bedrooms. Outside the house there is a yard with an external lavatory.

In 1990 Mr and Mrs Barnes bought this house and
did it up. They then let it for the period July 1990 to July 1991 to five
students. Two of those students were in their second year and three in their
third year. In July 1991 the three third year students moved on and the two second
year students stayed in residence. There then joined them three more students,
all of them girls. One was a friend of one of the two girls; the other two were
not particular friends but students on the same course at the same university.

Having referred to the three statutory notices
served on 22 May 1992, the Master of the Rolls continued:

At the time these notices were served Mr and Mrs
Barnes had already let the house for the academic year July 1992 to July 1993
by an agreement which they had made in February. The other parties to the
agreement were four young men, also students, who agreed to take the property
for that year. As it happened, those four students remained in occupation after
July 1993 for another year, but that is irrelevant to this narrative.

Those were the essential facts of that case. After
considering the nine factors, and having stated that he could not regard the
differences in the living arrangements between the two occupancies as being in
any way crucial, the Master of the Rolls said at p725:

It is inherent in student life that different
students will come and go at different times and that groups will vary in their
habits so far as sharing expenses and generally mucking in are concerned…

That reasoning in relation to those facts leads me
to believe that if a good working test is to be deduced from that decision it
should be this: where a small group of students at the same university join
together to occupy a house or flat for the period of an academic year they will
usually form a single household, notwithstanding that they may not all have
known each other beforehand and that they may pay rent individually for their
occupation. Their reason for living together may be taken to be a sharing in
the comradeship, no less than the expenses, of university life. There is from
the start a sufficient relationship between them for them to form a single
household.

It is helpful to go next to the basic facts of the
present case. The respondent, Mr Guy Rogers, is the freehold owner of 28 St
Peter’s Street, London N1, a three-storey house with a basement on the corner
of St Peter’s Street and Danbury Street in Islington. The accommodation
consists of a kitchen, two bedrooms, a bathroom and a utility area in the
basement; an entrance hall, living room and two further bedrooms on the ground
floor, with a bathroom on the half-landing; and three further bedrooms on each
of the first and second floors. There are therefore 10 bedrooms on four
different floors, a kitchen and a bathroom in the basement, an entrance hall
and a living room on the ground floor, together with a second bathroom on the
half-landing. Mr Rogers lives for most of the time in France, keeping one of
the bedrooms for his own occupation when he is in England. His evidence was
that he was at the property, on average, for two months a year. He lets out the
property under individual oral agreements for unspecified periods to up to nine
single adults at a time, each of whom has his or her own bedroom and is
entitled to share the living room, the kitchen and the bathrooms with the other
occupants. Mr Rogers said that the average length of occupancy was close to two
years.

On 22 November 1996 the council received a
complaint from a previous occupier of the property, who was concerned about the
inadequate provision of fire precautions and the means of escape in case of
fire. On 29November 1996 an inspection of the property was carried out by
Mr Simon Clarke, one of the council’s environmental health officers, and, on 9
December of that year, he paid a second visit, together with his manager and a
fire officer from the London Fire Civil Defence Authority. On 7 January 1997 Mr
Clarke completed a risk assessment survey of the property, in which it was
given a risk rating of High Risk Category A. On 25 March 1997 (the relevant
date for deciding whether the property was an HMO) the council, claiming that
the property was indeed an HMO, served on Mr Rogers a notice to execute works
pursuant to section 352 of the Housing Act 1985, the requirements in section
352(1A) that the house failed to meet being specified as follows:

1. Facilities for storage, preparation and
cooking of food, including an adequate number of sinks with a satisfactory
supply of hot and cold water.

(a) Absence of shared kitchen facilities adequate
for number of occupants.

2. Absence of adequate means of escape in case of
fire.

3. Absence of other suitable fire precautions.

The specification of works to be carried out
covered three full pages. Copies of the notice were served on the other
occupants of the property for information.

On 11 April 1997 Mr Rogers appealed to the county
court against the council’s section 352 notice. His appeal came before Mr
Recorder McIntyre in Clerkenwell County Court on 17 and 18 August 1998. Having
heard evidence and inspected the property, the recorder allowed the appeal on
the ground that it was not an HMO. That made it unnecessary for him to consider
the further question of whether the works specified by the council were or were
not necessary, and he did not deal with that question. He refused the council
permission to appeal, as did the single judge of this court upon consideration
of the documents. On a renewed application permission was granted by
Stuart-Smith and Thorpe LJJ.

Mr Rogers, who has appeared in person both here
and below, put in detailed grounds of appeal to the county court. He gave oral
evidence before the recorder, as did Miss Tina Jeavons, an occupant of the
property from October 1995 until September 1997. Miss Natasha Brooks, an occupant
since April 1998, and Mr Ben af Forselles, an occupant since September 1996,
each swore an affidavit, and, I believe, gave oral evidence as well. We have
seen copies of the witness statements of Mr Rogers and Miss Jeavons and of the
affidavits of Miss Brooks and Mr af Forselles. Mr Rogers put in a skeleton
argument on the appeal. He also addressed us on its merits. The council were
represented by Mr Robert Jay QC and Mr Kelvin Rutledge, the latter having
represented them before the recorder.

The further material facts are not substantially
in dispute. I can take many of them from the recorder’s judgment, stating them
mainly in his own words. The occupants of the property other than Mr Rogers
usually number nine. They come from a fairly narrow band of society, falling
within the 20 to 30 age group and being young men and women who have just
completed their further education, most of them going into the professions, the
civil service, banking or the City. MrRogers’ intention is to provide the
occupants with accommodation at a reasonable price for people of their age and
walk of life, and to provide them with stability and a roof over their heads
while they take their first steps after finishing their education. In his
witness statement Mr Rogers described the property as having been ‘set up
progressively as a private residential club, starting in 1973, and with
continuing improvements both physical and organisational to this day’.

Mr Rogers’ description of the property as a
private residential club is to some extent supported by the method in which the
occupants are recruited. Although they come in answer to newspaper
advertisements, it is the current occupants who decide whether new applicants
shall join them. Both Miss Jeavons and Mr af Forselles referred to their having
been ‘elected’ to become occupants. In her witness statement Miss Jeavons said:

The procedure was always the same: after a
newspaper advertisement was placed, we would conduct a short telephone
interview with all callers to assess their suitability to join the house. If it
was felt that the person seemed suitable, they were then invited to view the
house. As many members of the household as possible then met the prospective
tenant and we informally interviewed them to find out their dislikes, personality,
occupation etc as we always felt it was important to choose people who would
fit in with the current members of the household.

Miss Jeavons added that if at any time more than
two people decided that an applicant was unsuitable, he or she would
automatically be taken as unsuitable for the entire household. It appears that
Mr Rogers has a power to veto applicants, which is rarely exercised, if at all.
He said that he would only determine an occupancy for gross misconduct.

Each occupant pays rent into Mr Rogers’ house
account, usually by direct debit. The rent includes the cost of services, such
as water and electricity, and also, it may be assumed, a share of the council
tax payable in respect of the property. All these expenses are met out of the
house account, together with the cost of basic breakfast items, such as cereal,
milk, bread, and tea and coffee. Mr af Forselles said that MrRogers left
a chequebook for drawings on the house account, and that he and two other occupants
could draw on it up to £500 per cheque. He emphasised that the property was run
very much without the active presence or interaction of Mr Rogers.

All the witnesses spoke of the happy communal
atmosphere within the property, the friendliness between the occupants, their
sharing of communal facilities, and all joining together in running the house
and keeping it clean, doing the shopping and so forth. Here, I can read from
the affidavit of Miss Brooks:

The spirit of fellowship that [the communal atmosphere]
engenders pervades all aspects of the house; the fact that no one feels it
necessary to have a lock on their door, how the house organises itself to run
itself and that social activities (house meals, day trips, evenings out) are
regular occurrences with all members of the house actively involved.

In giving judgment, the recorder considered each
of the Barnes factors in relation to the facts of the present case. He
referred also to another factor, which was the sharing between the occupants of
most of the furniture in the property. Having said that he had had regard to
the considerations set out in Barnes and the other matters to which he
had referred, he held that, at the material time, the occupants of the property
comprised a single household. He added:

I think another way of looking at it and another
way that I have looked at it is to ask myself this question, ‘Are the
distinctions and differences between the situation in this case and the
situation which pertained in Barnes sufficient to cause me to decide
this case in favour of the respondent when Barnes was decided in favour
of, effectively, the appellant?’ I think the answer to that question is no.

In my judgment, the recorder, through too close an
adherence to the Barnes factors, erred in his conclusion. He was led to
overlook two crucial distinctions between that case and this. First, in Barnes
the occupants were only four or five in number, whereas here they were nine or
if, as I think he ought to be, Mr Rogers is included, they were 10. Second, in Barnes
the students, broadly speaking, came to the house as a preformed group for a
predetermined period, whereas here the occupants came to the property one by
one, mostly for indefinite and, necessarily, for dissimilar periods. However
much weight is attached to their communal life when they got there, I do not
think that there was between the numerous and shifting occupants of the
property a sufficient relationship for them to have formed a single household.
Although it may offend Mr Rogers’ justifiable pride in the community he has
established, it has to be said that, for the purposes of the 1985 Act, the
property is not different from an ordinary lodging house.

I would add my provisional view that, although the
facts in Barnes must be representative of very many similar cases in
university towns and cities throughout the country, they were near to the line.
Be that as it may, the facts of the present case are, for the reasons I have
given, clearly distinguishable and fall on the other side of the line.

I would allow this appeal, and make a declaration
that the property was, on 25 March 1997, a house in multiple occupation within
the meaning of section 345(1) of the Housing Act 1985. It would seem that the
matter should be remitted to the county court for determination of the question
of whether the works specified in the council’s notice under section 352 of the
Act are or are not necessary.

Agreeing, SWINTON
THOMAS LJ
said: I have
read the judgment of Nourse LJ and I agree with it. I also gratefully adopt his
full account of the relevant facts.

We were told by Mr Jay QC, for Islington London
Borough Council, that the application of the decision of this court in Barnes
v Sheffield 18 City Council (1995) 27 HLR 719 has caused some difficulty and concern both
to local authorities and to the courts. He produced a body of material that
strongly supported that proposition. He told us that the difficulty arose
because local authorities and the courts had tended to apply the factors
helpfully referred to by Sir Thomas Bingham MR in Barnes by rote or as
though they were statutory criteria. We were told that in some cases a decision
was arrived at by taking the nine factors referred to in Barnes, adding
up those that assisted either side, and then concluding which side was the
winner by, say, five to four.

The issue in Barnes, as in this case, was
whether the house was in multiple occupation (an HMO) or a single household for
the purposes of Part XI of the Housing Act 1985. It is, I think, of importance
to have in the forefront of one’s mind that the purpose of Part XI is to grant
powers to local authorities to require the execution of works to render
premises fit for the number of occupants, and, in particular, to provide
adequate means of escape from fire or other fire precautions. In the instant
case, the notice served by Islington council required Mr Rogers to carry out
fire-precaution works and to provide a means of escape. One can readily
understand the distinction drawn by parliament in relation to those powers
between a single household and a house in multiple occupation. Parliament would
be reluctant to interfere with a single household, and, obviously, a single
household, for example a family, is likely to make provision for fire
precautions, and, most important, in the event of fire, the members of a single
household will know who comprises the household and who is in the house at the
time of the fire, and will take all possible steps to look after each other,
particularly the younger members of the household. The courts should, in my
judgment, be slow to restrict the powers of local authorities to deal with the
risk of fire to persons who cannot properly be categorised as being a single
household. This court in Barnes rightly came to the conclusion on the
facts of that case that the household was a single household and not an HMO,
but the vital distinction between that case and the present case is that the
young people in Barnes came to the house and left the house as a single,
homogenous group, and could readily be identified as such. Of course, it does
not follow that a number of persons living in the same house who do not come
and go as a separate group are not a single household, but it will, in my
judgment, be more difficult in such a case to conclude that they do form a
single household, although, obviously, their mode of living in the house may
lead to that conclusion.

In Barnes, the Master of the Rolls
indicated that MrJonathan GauntQC, who appeared for the appellant
council, had put forward nine factors that were useful pointers to assist in
answering the question as to whether a house was occupied by a single household
or was an HMO on the facts of that case. The Master of the Rolls accepted that
they were helpful, as indeed they are, and said so in his judgment. However, it
must be borne firmly in mind that they were all factors that were relevant to
the facts of that case. In Simmons v Pizzey [1979] AC 37 Lord
Hailsham said at p59:

I do not find any of these references
particularly helpful except to make clear to me what I would have supposed in
any case that both the expression ‘household’ and membership of it is a
question of fact and degree, there being no certain indicia that the presence
or absence of any of which is by itself conclusive.

In Barnes, the Master of the Rolls said at
p723:

Other cases, of course, will fall somewhere
between the end of that spectrum, and the question that has to be answered on
the facts of any given case is whether it falls within the family kind of
picture or within the typical pattern of a house in multiple occupation.

It is of vital importance when answering the
question of whether a particular set of facts gives rise to a single household
or an HMO to analyse the facts of each case, by all means giving consideration
to the factors outlined in Barnes, if relevant, but then to stand back
and answer the question of whether, on the facts of the case, ‘it falls within
the family kind of picture or within the type of pattern of a house in multiple
occupation’. It is extremely likely that in any particular case not all the
factors that were relevant in Barnes would be relevant to that case, and
there are likely to be factors that are relevant that were not relevant in the Barnes
case.

In the present case, there were nine young adults,
aged between about 22 and 29 or 30, occupying the premises. Each had his or her
own bedroom. Each paid his or her own rent. They arrived at, and left, the
premises separately. When one tenant left, a replacement was found by way of
advertisement, and was chosen by the other tenants, as MrRogers, the
landlord, lived for most of the year in his house in France. There were
10bedrooms, each occupied individually, one living room, one kitchen and
two bathrooms. The kitchen, living room and bathrooms were, of course, shared.
The tenants were responsible for cleaning the common parts. On the whole, the
tenants did not shop, cook or eat together.

Mr Jay submitted to us that the two most important
factors for consideration are, first, the physical arrangements or layout of
the house, in particular the ratio of bedrooms to other rooms; and if the ratio
of bedrooms occupied by separate persons is substantial as compared to living
rooms, so the more likely it is that the house is an HMO. Second, it was
important to consider the nature of the relationship between the occupants, and
to pose questions such as whether it existed before the individuals went into
occupation, the extent to which each occupant was an independent socio-economic
unit, and the extent to which they were living separate lives, although
sleeping under the same roof. In my judgment, those factors are, indeed, very
relevant to the present case. In this case, the layout of the premises, that is
to say 10 separately occupied bedrooms (Mr Rogers reserved one for himself) and
comparatively limited communal living space, the fact that the occupants lived
independent lives and the fact that they came to the premises separately as
strangers to each other and left separately, all pointed extremely strongly to
a conclusion that the house was a house in multiple occupation. In this case,
the recorder, not unnaturally, went through the factors that were applied in Barnes
and attempted to apply them to the present case and to make findings as to
whether each of those factors supported the case for the appellants or the case
for the respondent. In truth, that was not a practical task and not all the
factors were relevant, and, in the case of some of them, the particular facts
were capable of supporting the case put forward by both parties. It is only
right and fair to say that the recorder reminded himself that it was not the
correct approach to add up the factors that favoured either side and then
announce the winner, and also reminded himself that he must stand back and ask
whether the residents comprised one family or unit or household on the one hand
or several. The recorder then said that the answer to that question depended
‘on how the occupants operated in terms of their residency of this house as
described: did they operate as one or did they operate separately’. In my view,
those were not the correct questions to pose. The question is not whether the
residents composed one household or several but whether, looking at the
totality of the facts, the house was in multiple occupation or a single
household. Of course, the factors that were outlined in Barnes will, if
relevant, be useful pointers, as will the factors suggested by Mr Jay in the
present case, but they do not necessarily provide the answer or the whole of
the answer. As to the second question posed by the recorder, it is not
possible, in my view, to answer the primary question by deciding whether the
occupants operated as one or operated severally. Indeed, in a case concerning
nine young individual adults, it is not a question that is capable of a simple
affirmative or negative answer.

It follows, therefore, in my opinion, that the
recorder asked himself the wrong questions and, as a result, arrived at the
wrong conclusion. On the totality of the facts of this case, I am quite
satisfied that this house was a house in multiple occupation, and I would
accordingly, and for the reasons given by Nourse LJ, allow this appeal. I agree
also with the order proposed by NourseLJ.

MUMMERY LJ agreed and did not add anything.

Appeal allowed.

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