Only or Principal Home…again

In my last court appearance before Christmas I was instructed to act on behalf of a housing association in a 2-day possession trial, primarily reliant upon an allegation that the (sole) tenant no longer lived at the demised premises as their only or principal home at the expiry of a notice to quit. In particular they had spent much of the last 2 to 3 years out of the country.

Judgment was reserved and handed down a few days after the conclusion of the parties’ cases and submissions, the Judge ultimately finding for the claimant association.

Previous blogs

When dealing with ‘misuse’ of social housing, one of the most difficult areas to explain, and demonstrate, can be the concept of only or principal home. I have written on this topic previously:

• “Only or principal home” and an outright order for possession – 1 May 2018
• Briefing paper for the Tenancy Fraud Forum Midlands Conference – 22 November 2019
• Only or Principal Home....as a tenant? – 30 December 2024

The last blog was inspired by the Court of Appeal decision in The London Borough of Hackney v Yisroel Weintraub [2024] EWCA Civ 1561; [2025] 1 W.L.R. 1766. In the first appeal before Zaccaroli J, as he then was, reported in [2024] EWHC 845 (Ch) at [38], it was said:

“The facts of this case are unusual: there was a highly specific reason for ceasing to occupy the Property as a principal home – the fear of sleeping in the Property alone – which can readily be overcome by the alterations which Rabbi Weintraub plans to carry out on his return. The reason for ceasing to use the Property overnight, and the proposed solution, reinforce that there is a real and genuine intention by Rabbi Weintraub to restart occupying the Property as his principal home.”

I would conclude this section by emphasising that mere use of demised premises is not necessarily sufficient to defeat an only or principal home argument (i.e. complete abandonment is not a requirement). In Havering LBC v Dove [2017] EWCA Civ 156; [2017] P.T.S.R. 1233 Lewison LJ said:

“22. In my judgement these principles are engaged not only where the tenant is absent from the property in the sense of not being physically present at all. They are also engaged where the tenant ceases to occupy the property as his or her only or main home even if he or she continues to occupy it as a home; as, for example, where what had once been the tenant’s only home becomes no more than a weekend or holiday home. Moreover the question of an intention to return (which often features in these cases) is in reality an intention to revert to a previous pattern of existence. This was the case for instance in Crawley BC v Sawyer (1987) 20 H.L.R. 98(the tenant had occupied the dwelling as his only home for three years and went to live with his girlfriend temporarily but intending to return); Camden LBC v Goldenberg (1996) 28 H.L.R. 727(D lived with his grandmother for four years and after an absence abroad returned to live with her. He stayed in a friends’ house while they were on holiday, intending to find accommodation of his own, but when that failed he moved back into his grandmother’s flat).”

Evidential issues

The above section and my previous blogs on this topic explain sufficiently, I hope, the law and jurisprudence behind this legal concept. What I want to address here in relatively short form is some key practice factors and deficiencies in the defendant’s case which enabled the landlord to succeed in the recent trial I mentioned in the introduction. These can be summarised as follows:

1. A failure to address the complete body of evidence

So much of the landlord’s evidence was not responded to in the defence or the witness statements filed on behalf of the defendant. Of course, a claimant faced with such omissions may choose to be pro-active pre-trial and make a Part 18 Request for Further Information and/or seek the strike out of the defence for not complying with the content requirements to be found in CPR r. 16.5.

Here it was rather used to demonstrate the inherent implausibility in the defendant’s case and failure to overcome the reversed (LB Islington v (1) Boyle (2) Collier [2011] EWCA Civ 1450; [2012] P.T.S.R. 1093) ‘burden of proof’.

2. Gaps in evidence.

Following on from that last comment, if the demised premises remained the tenant’s principal home, they had not sub-let or parted with possession of it and despite a period of extended absence they intended to return to live there then why could they not produce positive evidence of this?

It especially does not help if 3rd party evidence is produced in the form of a witness statement but that individual does not attend and no good reason is provided for their absence. Not only can it lead the court giving little or no weight to such evidence (see s. 4 of the Civil Evidence Act 1995) but the non-attendance may add to any scepticism and/or concern a court may already have about the bona fide nature of the defendant’s case.

3. Evidence of 3rd party deception.

For example, somebody had attended an earlier hearing and originally claimed to be the defendant. Similarly a 3rd party had attended the landlord’s offices and rang them, claiming to be the defendant. In oral evidence the defendant denied any knowledge of these deceptions but as already noted, failed to produce the individual who did act in this manner.

4. Unexplained communications.

For example, when contractors rang the tenant’s mobile number a 3rd party answered and said that tenants were about to move into the premises. On another occasion the tenant’s daughter spoke to the landlord’s solicitors and said she did not know where her father was and they did not get on. This was in direct opposition to their case that she had come to the UK to look after him.

5. Multiple inconsistencies.

Further to the above, 2 other individuals were connected to the premises when a credit reference search was undertaken on behalf of the landlord. In many cases on this and related topics there is no one compelling piece of evidence. However, the build-up of inconsistencies, omissions and lack of positive evidence on the defendant’s part and in their case can be sufficient to ‘tip the balance’.

The issue of inconsistencies must be seen against the backdrop of the court’s well established approach, recognising that they may, to an extent at least, be explainable by the passage of time, different perspectives, or minor errors. That said, fundamental inconsistencies may affect the weight given to a witness’s evidence: Takhar v Gracefield Developments Ltd [2024] EWHC 1714 (Ch); Gestmin v Credit Suisse [2013] EWHC 3560 at [16]-[22].

As HHJ Tindal, sitting as a Deputy Judge of the High Court, summarised and approved in Takhar at [80]:

“A ‘holistic approach’ also benefits from being open to fact-finding insights from other jurisdictions, including Family and Crime. That was the approach Mr Dias KC adopted in the clinical negligence case of Powell at [25] with his ‘13 axioms of fact-finding’ (which I repeat with some citations and quotations excised):

“(1) The burden of proof rests exclusively on the person making the claim (she or he who asserts must prove), who must prove the claim to the conventional civil standard of a balance of probabilities;

(2) Findings of fact must be based on evidence, including inferences that can properly (fairly and safely) be drawn from the evidence, but not mere speculation (Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12, per Munby LJ);

(3) The court must survey the “wide canvas” of the evidence (Re U, Re B (Serious injuries: Standard of Proof) [2004] EWCA Civ 567 at [26] per Dame Elizabeth Butler-Sloss P (as then was)); the factual determination “must be based on all available materials” (A County Council v A Mother and others [2005] EWHC Fam. 31 at [44], per Ryder J (as then was));

(4) Evidence must not be evaluated “in separate compartments” (Re T [2004] EWCA Civ 558 at [33], per Dame Elizabeth Butler-Sloss P), but must “consider each piece of evidence in the context of all them other evidence” (Devon County Council v EB & Ors. [2013] EWHC Fam. 968 at [57], per Baker J (as then was)); such “context” includes an assessment of (a) inherent coherence, (b) internal consistency, (c) historical consistency, (d) external consistency/validity – testing it against “known and probable facts” (Natwest), since it is prudent “to test [witnesses’] veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case” (The Ocean Frost)…

(5) The process must be iterative, considering all the evidence recursively before reaching any final conclusion, but the court must start somewhere (Re A (A Child) [2022] EWCA Civ 1652 at [34], per Peter Jackson LJ…

(6) The court must decide whether the fact to be proved happened or not. Fence-sitting is not permitted (Re B… at [32], per Lady Hale);

(7) The law invokes a binary system of truth (Re B at [2], Lord Hoffmann):

(8) There are important and recognised limits on the reliability of human memory….(Gestmin…); and the court should be wary of “story-creep”, as memory fades and accounts are repeated over steadily elapsing time (Lancashire County Council v C, M and F (Children – Fact-finding) [2014] EWFC 3 at [9], per Peter Jackson J);

(9) The court “takes account of any inherent probability or improbability of an event having occurred as part of the natural process of reasoning” (Re BR  [2015] EWFC 41 at [7], per Peter Jackson J); “Common sense, not law, requires… regard should be had, to whatever extent appropriate, to inherent probabilities” (In re B at [15], per Lord Hoffmann);

(10) Contemporary documents are “always of the utmost importance” (Onassis…per Lord Pearce), but in their absence, greater weight will be placed on inherent probability or improbability of witness’s accounts… (Natwest at [50])…

(11) The judge can use findings or provisional findings affecting the credibility of a witness on one issue in respect of another (Arkhangelsky);

(12) However, the court must be vigilant to avoid the fallacy that adverse credibility conclusions/findings on one issue are determinative of another and/or render the witness’s evidence worthless. They are simply relevant: “If a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything.” (R v Lucas [1981] QB 720, per Lord Lane CJ); Similarly, Charles J: “a conclusion that a person is lying or telling the truth about point A does not mean that he is lying or telling the truth about point B…” (A Local Authority v K, D and L [2005] EWHC 144 at [28]). What is necessary is (a) a self-direction about possible “innocent” reasons/explanations for the lies (if that they be); and (b) a recognition that a witness may lie about some things and yet be truthful “on the essentials … the underlying realities” (Re A (No.2) [2011] EWCA Civ 12 at [104].

(13) Decisions should not be based ‘solely’ on demeanour (Re M [2013] EWCA Civ 1147 at [12], per Macur LJ); but demeanour, fairly assessed in context, retains a place in the overall evaluation of credibility: see Re B-M, at [23] and [25]: “a witness’s demeanour may offer important information to the court about what sort of a person the witness truly is, and consequently whether an account of past events or future intentions is likely to be reliable”; so long as “due allowance [is] made for the pressures that may arise from the process of giving evidence”. But ultimately, demeanour alone is rarely likely to be decisive. Atkin LJ said it almost 100 years ago (‘The Palitana’) (1924) 20 Ll. L. Rep. 140, 152): “… an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”

Conclusion

My recent trial experience has confirmed yet again the importance of case preparation starting well before the issue of proceedings. Thorough, fair and relevant investigations – including the use of an external agency – and careful preparation of statements of case, disclosure and witness statement evidence (including the question of who to rely upon) was unsurprisingly an important factor, and particular credit must therefore go to the officers of the social landlord and Kelly Lloyd of Devonshires Solicitors LLP.

Andrew Lane is a barrister at Cornerstone Barristers. This article first appeared on the Cornerstone on Social Housing Fraud blog.