Lands Tribunal for Scotland

OPINION

Johnston
v
Dundee City Council

The applicant is a secure tenant of a house provided by the respondents at 16C Abbotsford Place, Dundee (hereinafter, the “house” or “16C”). He seeks a finding in terms of section 68(4) of the Housing (Scotland) Act 1987 (“the Act”) that he has a right to purchase under section 61 of that Act. The landlords had refused his application to purchase and oppose this current application on the ground that the applicant had not been in occupation of the house for a continuous period of two years prior to the date of service of the application to purchase, as required in terms of section 61(2)(c) of the Act.

We heard evidence bearing on this issue at Edinburgh on 11 May 2006. Ms Caroline Clark, Solicitor, appeared on behalf of the applicant and led evidence from his wife, Alison Taylor, and from the applicant. The respondents were represented by Ms Caroline Evans, Solicitor, who led evidence from Mrs Irene Rennie, a housing officer employed by them. A number of productions were lodged by the applicant which were not challenged although no direct reference was made to them in the course of the evidence.

Statutory provisions

Section 61 of the Act provides that a tenant of a house let under a secure tenancy by a landlord, such as the present respondents, has a right to buy where “(c) immediately prior to the date of service of an application to purchase, the tenant has been for not less than two years in occupation of a house”.

It may be noted for completeness that section 61(10) provides certain extended definitions of “occupation” but it was not suggested that such provisions could have any bearing on the present case. Certain provisions of subsection (10)(b), as enacted, allowed for interruption of the two year period but these were repealed by the Leasehold Reform, Housing and Urban Development Act 1993. Although we invited assistance of parties on the question, we did not hear submissions as to the nature of changes affected by the Housing (Scotland) Act 2001. Section 42 of the 2001 Act appears to substitute a period of five years in section 61 (2)(c). However, it was agreed by Ms Evans that this did not affect pre-existing rights and that, for Mr Johnston the period of two years is the critical one. In any event, parties were agreed that in the present case it did not matter whether the relevant period was two years or five years, the dispute was in respect of the period immediately prior to the application.

Background

As will be seen, the issue in this case was accepted as being essentially one of credibility and we shall come to deal in some detail with the material bearing on this. The following material provides an adequate background to the dispute and was admitted or not seriously disputed.

The applicant has been tenant of the house since 1997. It is admitted that he is a secure tenant for the purposes of the Act. Rent has been paid throughout the relevant period but we heard no evidence of the mechanics of this. The documentary evidence demonstrates that Mr Johnston is in receipt of Housing Benefit from the respondents and it may well be that this is retained as equivalent to rent. The tenant is registered at the house for various purposes including council tax and the voters roll.

The applicant suffers from a psychotic illness. Although the severity of the effects of his condition can vary, it is a severe and limiting mental illness. It has, apparently, been diagnosed as schizophrenia. The applicant is prone to attacks of anxiety and panic. He is very forgetful. He can become very confused. He suffers frightening hallucinations. He feels lethargic and depressed. It is clear that he could not cope with day to day living without support. He needs encouragement to get in and out of bed. He has to be reminded to get dressed or undressed. He requires to be reminded to clean himself after toileting and requires encouragement to attend to general personal hygiene. His eating habits require supervision, without this, he might simply forget to eat. He cannot prepare a cooked meal. He is very forgetful and cannot cope independently with his medication. At night he requires attention in connection with his body functions. He is prone to urinary incontinence and needs help to change his bedding, clean himself and change his night clothes.

Ms Taylor acts as his carer. This involves reminding him of routine tasks such as dressing, washing and taking his medication. She has to change and wash clothes and bedding on a daily basis. She provides all his meals. She receives an invalid care allowance. This is based on an understanding that she requires to provide at least 35 hours care a week.

Mr Johnston is not house bound. e He He is able to go out, at least in the company of Ms Taylor. He can travel between his house and her flat unaccompanied. They go walking together. They go shopping. They socialise, at least to the extent of going out to a pub together. The applicant is able to take alcohol in moderation.

Ms Taylor has a tenancy of a council property at 15E Corso Street in Dundee. This street runs parallel to Abbotsford Place and the back green areas of the side of Abbotsford Place on which Mr Johnson has his house adjoin the back areas of Corso Street. Ms Taylor has occupied her house since about 10 May 2002. Prior to that she occupied a private tenanted house at 1 Abbotsford Place.

The general locality of Abbotsford Place and Corso Street is regarded as a good one. There is a large proportion of sheltered accommodation and the population is a relatively elderly one. There is no high turnover of tenants. The locality is quiet. The buildings are three storeys high with six flats in each block. They are generally well maintained and the tenants tend to take a pride in their area.

In 2003 an abandonment notice was issued to Mr Johnston apparently because of information received by the Council to the effect that his flat was empty. Mrs Rennie made several attempts to contact Mr Johnston at his house. She left a letter asking him to contact the Council. There was no reply to this. However, she eventually met him at the house. However, after the issue of the abandonment notice, a letter was received from Mr Johnston’s solicitors to the effect that he was still living there. The letter requested that contact should only be made through the solicitors or through Ms Taylor. Following this contact, abandonment proceedings were stopped.

There are various sheltered housing units in the area. In 2004, wardens in the area reported, informally, to the Housing Department that they understood from conversations with local residents that Mr Johnston and Ms Taylor had married and were living at Corso Street. Ms Taylor and Mr Johnston were married in church in Dundee on 21 May 2004.

When the application to purchase was received, Mrs Rennie was involved as a matter of routine to report that there were no special circumstances relating to the nature of the dwellinghouse which would prevent purchase. She made an appropriate report to the effect that there were no such circumstances. A gas repair man then reported that a fire in the house had been painted over and was, accordingly dangerous. He had disconnected it. As part of her routine duties as housing officer, Mrs Rennie had to visit the house because of the safety issue. She called at the house and left a note when she received no reply.

She met Mr Johnston and Ms Taylor at the house by arrangement. At that time the house had no carpets and was sparsely furnished. There was no television. There was a computer but it was not connected up. There were some tins of food but no fresh food. There was no cooker. Although the house was fitted with central heating it was very cold. Mr Johnston and Ms Taylor were wearing clothes appropriate for outdoors. The date of this visit was not identified. There was a suggestion that is was in April but we think it must have been before issue of the refusal letter on 4 March and take it to have been about the end of February 2005.

Mrs Rennie formed the impression that Mr Johnston was not living in the house at that time. She made various enquiries. On the basis of all the information available to them, the respondents concluded that Mr Johnston had not been in occupation of the house from at least the time of the marriage to the date of the application to purchase. They refused the application in terms of section 61 (2) (c).

Submissions

The solicitors were agreed that the issue was one of credibility. The actual issue for determination was seen as a straightforward one. Was the applicant living at his own house or at Corso Street from the time of the marriage to the date of the application; that is, from 21 May 2004 to about February 2005? We mentioned the discussion of the expression “occupation of a house”, by the Inner House in Beggs v Kilmarnock and Loudon District Council 1996 SLT 461, where the Court was dealing with a tenant who had been sentenced to a significant period of imprisonment. Neither party thought it necessary to refer to dicta from that case nor to raise any question of the burden of proof.

Discussion

It is clear that the question of continuity of occupation can raise issues of some nicety. However, we think the robust approach taken by the solicitors was sensible enough in the circumstances of the case. We can accept the broad submission that there is a distinction between marriage and imprisonment. Where a person with a right to occupy is prevented from physical residence by circumstances beyond his own volition, it is necessary to give weight to other symbols of occupancy. If the absence can be attributed to a deliberate choice of residence, other potential symbols of occupancy will be of no significance as such. (They may, of course, be important as adminicles of evidence bearing on the question of whether or not physical residence has continued.) An important feature is the inference of intention. Imprisonment, in itself, casts no doubt on the issue of intention to return to live in the former home. Where a person moves to live with a spouse on marriage, no inference of intention to return to the former home can be drawn unless there are relevant special circumstances.

In short, the issue here can properly be seen as one of credibility. There was no attempt to suggest that Mr Johnston’s need for attendance justified periods of residence at Corso Street, as a matter of convenience or otherwise. Ms Taylor simply denied that he did so. As we shall discuss there was evidence that they did not think the marriage would work. Such evidence might have raised nice questions as to intention. A move to live with a wife on that basis might not be inconsistent with the intention to return to the tenanted subjects. But as matters were presented in black and white terms, there is no sound factual basis for exploration of any such questions. There was no attempt to suggest that any absence was explicable or consistent with continuing occupation of his own house within the meaning of the Act. It may be observed that there was, of course, no dispute and no doubt, that occasional overnight stays away from the house would have no bearing on the issue.

The substantive issue for determination was whether, on a proper view, the evidence showed that Mr Johnston had, or had not, been living in his own house prior to the application to purchase. In particular, had he been living there in the period between that date and the time of his marriage? On the face of it, this issue turned on a conflict between the direct evidence of Ms Taylor and that of second-hand evidence from neighbours and spoken to by Mrs Rennie, that, after the marriage the couple openly went to live at Corso Street and were seldom seen in Abbotsford Place. Before dealing with the detail of the evidence, it is appropriate to comment briefly on the nature and quality of it.

It is necessary to record the difficulties which Mr Johnston plainly faced in coping with the hearing. We formed the impression that he had a good understanding of what was going on. However, he clearly found that giving evidence was a considerable strain. He sat throughout with head bowed. He was able, with some assistance from Ms Taylor, to cope with a disabling panic attack but it was clear that he remained very anxious. He required long periods of apparent concentration before he was able to enunciate an answer to questions. He responded in monosyllabic terms and it was not always easy to understand what he was trying to say. However, his responses were always appropriate to the questions. It can be said that we had no impression that he was doing anything other than trying to tell the truth. However, it was not possible for us to make any sound assessment either of the credibility or reliability of his evidence. We could tell nothing from his demeanour and his illness prevented the type of exchange of question and answer which would allow examination of elements such as consistency, coherence and lack of unnecessary hesitation, which play a large part in assessment of credibility. There is no doubt that his medical condition affects his memory. We conclude that his evidence must be regarded as essentially neutral in relation to the main issue. We, accordingly, think it unnecessary to comment fully on the detail of it.

We regret that we did not find Ms Taylor to be a persuasive witness. It is necessary to say that her demeanour and manner of giving evidence raised serious doubts as to her credibility. She was hesitant in responding to questions which should have presented no difficulty. She told us she was a student at Dundee University and, if this is correct, her professed, or apparent, lack of understanding of some questions should not have been attributable to any true difficulty in comprehension. We conclude that much of her hesitation and her confused replies arose from an attempt to work out what the best answer would be, rather than to provide a straightforward response. We give some examples of this below but hesitation and apparent confusion over the answers to straightforward questions characterised much of her evidence.

We accept Mrs Rennie as a credible and reliable witness. She gave evidence in a straightforward fashion and her interest in the matter was a professional one. It may be said that we had some hesitation over her use of the word “staged” in relation to a computer found on her visit to check the gas fire. As we discuss below, all her other evidence as to what she found was far removed from any sense of contrivance. We wondered whether this term suggested a bias towards the applicant rather than a professional assessment. However, we have come to the conclusion that the real significance of her evidence on this particular issue was simply that the presence of the computer struck her, at the time, as requiring explanation by contrast with the rest of the house.

The third distinct source of evidence was the evidence of various neighbours as spoken to by Mrs Rennie. Second-hand evidence is inevitably much less satisfactory than direct evidence. It cannot be challenged in any way. Even if what is actually reported is true, as far as it goes, the evidence cannot be tested to determine its limits or qualifications. This factor presented a particular problem in the present case. Plainly, the nature of Mr Johnston’s illness is a dominant characteristic of his whole way of life. We had no way of assessing the extent of the neighbours’ knowledge or understanding of this. We do not know whether they knew that Ms Taylor was a paid carer. It is evident that the significance a witness would naturally attach to the actings of a man and woman whom they saw getting married and then going around together would tend to be quite different from the significance they would attach to the conduct of a couple perceived simply in the roles of patient and carer. Although we well understand why the respondents did not wish to press unwilling neighbours to give evidence, the option of relying on second-hand evidence should not lightly be resorted to. The Tribunal has powers to compel attendance. Our task would have been easier if we had had direct evidence in this case.

It may be added that it would also have been easier if the issue, as ultimately presented to us, had been focused in the pleadings. The assertion made was that reports of neighbours stated that the applicant had stayed at Corso Street “for the last seven years”. The applicant and his advisers may have been lulled into a false belief that this would easily be disproved. Ms Taylor had only had the tenancy of Corso Street since 2002 and it turned out that there was no dispute that the applicant had occupied 16C since about March 2005. The applicant had lodged various items of correspondence and documentary material tending to show 16C Abbotsford as his address but none of this was, on the face of it, referable to the period from May 2004 to early 2005 which turned out to be the period in dispute.

One other difficulty arising, perhaps, from the pleadings, was that the questions put to Ms Taylor did not clearly distinguish evidence of current events and evidence bearing on the disputed period. It was not until we heard Mrs Rennie’s evidence that we realised that a clear distinction was to be drawn. Mr Johnston was asked questions about the bin day and about the neighbours, which we understood to be designed to test his evidence of living at 16C. This material turned out to be meaningless once it became clear that the respondents accepted that he had been in occupation of the house since about the time of the refusal. Indeed, Ms Evans, acknowledged that if the present situation continued, Mr Johnston would be entitled to purchase the house in about March 2007.

Despite these difficulties, we require to do our best to assess the whole evidence as it eventually emerged.

Ms Taylor’s evidence in chief was to the effect that she first met the applicant in 1997 when he moved into 16C. She was not examined in detail on the matter at that point but we noted that she did not provide an answer to the question, which was how she came to meet him. She said she had known his father and gave an explanation of how she met the father. In cross-examination she was asked whether the applicant had stayed at her flat at 1 Abbotsford Place. She said he had never lived there. She then accepted that he had occasionally stayed overnight. She could not remember, or was unsure of, the precise sequence of events leading to her becoming his carer in 1997 when he got his own flat. He had not stayed with her before although he might have spent an occasional night at her address. Once he had the tenancy of 16C, they stayed together there because he needed overnight care. They had separate rooms. In fact, the house had been allocated to him with a room for a resident carer. She retained her tenancy of 1 Abbotsford Place until 2002 when she obtained the council tenancy at Corso Street. She said they stayed at Corso Street one night a week or so but then corrected herself to say that she made a point of staying overnight at Corso Street perhaps every nine days, or so. This was “to keep the landlords happy”. She said she had done this as a matter of policy since acquiring the flat but could not say why she had adopted this policy. We observe that one explanation for it would be an awareness of the significance of occupation since the refusal of Mr Johnston’s application. Her flat had two bedrooms. When she was staying there, the applicant would usually stay overnight but she said that he occasionally stayed at his own house. She seemed uncertain as to the arrangements made for his care on such occasions. She seemed to have difficulty in understanding the question. There was some hesitation before she could provide the name of anyone who had looked after him. However, she eventually was able to say, “That would be John Smith”.

Ms Taylor gave a good deal of evidence about the present arrangements. She stayed overnight at Abbotsford Place because Mr Johnston needed attention. However, she would get up early and go to her own house about 6.30am. Mr Johnston would come round about noon to get his meal. They would spend the rest of the day there until about 4.30pm or 5.00pm. They would play music. There would be noise from the flat during that period. Neighbours would hear this. In the evening, they would be at 16C. She would watch TV quietly in one room. Mr Johnston would keep to his own room. She was not sure what he did. He was entitled to do his own things. He did not watch television. This material was only relevant to the question we have to answer because of her evidence that the situation had been unchanged throughout, since the period before the marriage.

We had serious difficulty over Ms Taylor’s evidence about the marriage itself. She did not provide straightforward answers to questions about this. We might have expected an explanation based in some way on Mr Johnston’s illness. But in absence of any attempt at explanation we cannot accept her evidence as credible. It is not easy to convey the flavour of that evidence but it might well be summed up as being to the effect that the marriage was an event of no greater significance than a trip to the shops. She did not explain why they married or what changes she expected to follow. She did not accept that any changes had actually followed. She admitted that they had slept together before the marriage but we understood her evidence to be that they had never slept together after. This material was not easily elicited. Asked specifically why they got married, her response was, “We could not live together because of his illness”. She added that, “We did think we could try to live together but to be honest we never thought we could live together in one house.” After a little confusion, she repeated that after the marriage they had never “lived together”. When we attempted to clarify this she accepted that they, of course, continued to “stay” in the one house. But she said they had not slept together. When they got married, she did not think they would ever be able to “share” a house. Pressed on the reason for the marriage, she said it was for love. But, her attempts to explain why they never slept together after the marriage were confused and unenlightening. She could not say whether she had known, before the marriage, that they would not sleep together. She was at pains to stress that she had her own life. She needed her own space. She was not sure whether they would be able to live together. They were not, and had never been, a couple. We noted the applicant’s pleadings in the following terms: “The parties resided together for approximately three weeks. They subsequently separated. Ms Taylor remains in her capacity as the Applicant’s carer.”

When attempting to clarify this point, we were aware that fluctuation in the applicant’s medical condition might well explain conduct which was otherwise unusual. However, no attempt to advance such explanation was made and we were left with uncertainty over the whole question of the marriage, its reason and consequences. We asked Ms Taylor why they chose to stay in 16C after the marriage as opposed to her house at Corso Street. She appeared to have difficulty in understanding this question and we rephrased it to ask whether there was any reason why they chose to stay in the poorly furnished house at 16C rather than the house at Corso Street with all her furnishings including television, cooking facilities and music systems. We ultimately understood her response to be that it was because Mr Johnston got the house on medical grounds and was entitled to live there.

It may be added that Mr Johnston was asked whether, when they got married, they were planning to live together. Like all answers it took a little time to come but it was longer and clearer than most of his answers. He said, “It never worked because of my illness”. The matter was not pressed but that answer would support the view that, at the time, he saw the marriage in the same way as any other marriage.

It is fair to say that, when Ms Taylor was giving evidence we simply could not understand the difficulty she appeared to have in giving any coherent explanation of why they married when her emphasis was that they were not a couple and that she was just a carer. However, the evidence of Mrs Rennie’s enquiries, noted below, provided a clear potential explanation; namely that Ms Taylor was simply giving a deliberate false account to avoid questions about the normal consequences of marriage and setting up a home together.

Ms Taylor gave an explanation for the absence of carpets in Mr Johnston’s house which was confusing but had to do with the illness of her dog. The explanation noted by Mrs Rennie was that they were about to carry out decorating. We did not understand the explanation for the absence of any television set from the house. It was also said to be attributable in some way to the dog. In any event, she said Mr Johnston could not concentrate for long enough to watch television. She admitted that she, herself, did watch television in the evenings. She had now brought a television to the house from Corso Street. Typically she would watch television in one room while Mr Johnston would go about his own affairs in his own room. It was accordingly, very quiet in the house at night.

Ms Taylor said she was a part-time student of psychology at Dundee University working three hours a week. Asked whether this was three hours of lectures, classes, tutorials, or what, she hesitated and started to ask for clarification of the question before saying, “It would be classes”. This response would be consistent with her evidence of how she spent her typical day and we accept that three hours classes would not necessarily interfere with her role as carer although we did not find this material entirely persuasive. However, she said she was to start full-time in September and appeared to find some difficulty with the question of who would take care of Mr Johnston then. We had an impression that she was about to say that he could cope during the day but then realised this might not fit her other evidence. Be that as it may, she eventually said that he would have to get another carer. This seemed a somewhat casual reply in the context of her long history of caring for him. It may be that she, in fact, expects to find the student regime sufficiently flexible to allow her to continue as carer or that she is not sure what will work. The situation will present problems but the way she dealt with questions about these problems seemed to us indicative of an attempt to dissemble rather than respond frankly.

Mrs Rennie’s direct evidence was of hearing that the house was empty in 2003 and going to visit. She could not get a reply. The house seemed unfurnished. She had no reply to letters left at the house so the abandonment notice was served. She then visited the house and met Mr Johnston. At that time, the house had no carpets and little furniture. He explained that this was because they were to be decorating. Because of this response and the letter from the solicitors, no further steps were taken at that time. In course of 2004 she heard through the wardens of the local sheltered housing complex, that Mr Johnston had married and gone to live with his wife at Corso Street. There was nothing of the nature of a complaint and she did not have to take any action at that time. The information apparently derived from conversation with unnamed local residents attending the sheltered housing centre. We note that at least the part of it relative to the marriage has turned out to be well founded.

In 2005, after the application to purchase, she received the report of repairs required to the gas fire. The flat was empty when she called but she left a note and was able to arrange a meeting through Ms Taylor. Although it was a pre-arranged visit, the house was cold and the tenant and carer were wearing clothes suitable for outdoors. There was no sign of fresh food and no obvious clothing. There was no cooker and no TV. There was a computer which was not connected. As we have observed we thought it odd to suggest that this was “staged”. A computer would hardly be selected as something convenient to take to the house to give an impression of occupation. The computer was not connected. In any event, the purpose of the visit was not to demonstrate occupancy and the attire and lack of heat suggested that this had not been in the mind of the applicant at that time. Mrs Rennie also said that she could not remember whether there were one or two bedrooms. She thought the bedroom or bedrooms each had a bed but little by way of clothing or other materials. She did not think it right to examine cupboards.

Because of the clear impression she had from that visit, Mrs Rennie decided to make enquiries of neighbours. She spoke to three neighbours, whom she named, in Corso Street. They all told her that the couple were living at Corso Street not Abbotsford Place. The neighbours could hear them in Corso Street by day and night. Two of the neighbours told her that Mr Johnston and Ms Taylor had told them that they were intending to buy the house at Abbotsford Street and rent it out. The lady living below 16C said she had not heard them there. The witness pointed out that with no carpets, sounds in the flat would be clearly audible in the flat below. This neighbour was able to say that there was never washing in the drying green for Abbotsford Place. She could see their washing at Corso Street. They had not lived at 16C since their marriage. Mrs Rennie said she had learned “from the neighbours” that when Ms Taylor got her tenancy in 2002, furniture had been moved from 16C to her flat. However, we attach no significance to this point which was not put to Ms Taylor.

The picture presented by the neighbours was that after Ms Taylor obtained her tenancy Mr Johnston stayed mainly at Corso Street but the pair quite often visited the house. After they were married they stayed at Corso Street and rarely visited 16C. We note that although it might seem strange, in the context of the present disputed application, for the applicant to have admitted an intention to buy to rent - and Ms Taylor denied any such statement - that was not the context at the time. This evidence seems to us quite consistent with a neighbourly conversation and an innocent enquiry as to what they were going to do with Mr Johnston’s house now they were married. It supports the view that neighbours simply regarded them as a married couple living at one address and with no need for the other house.

Mrs Rennie also spoke to having seen a letter from the private landlord of Ms Taylor’s house at 1 Abbotsford Street written to the Housing Department in support of Mr Johnston’s application for a council tenancy. She said that the letter narrated that Mr Johnston was living in Ms Taylor’s house at the time but did not suggest that they were living as a couple. He had some makeshift sleeping arrangement. We cannot accept Mrs Rennie’s evidence on this matter as necessarily inconsistent with the evidence for the applicant. Although both Mr Johnston and Ms Taylor had denied that he lived there, Ms Taylor admitted that he had stayed occasionally overnight. We do not know how the letter came to be written. It is likely that the help of the landlord was enlisted by Ms Taylor and there is obvious scope for misleading material to have been presented, perhaps accidentally.

Despite the problems of dealing with second-hand evidence, we are satisfied of the essential veracity of the material spoken to by Mrs Rennie. Evidence of seeing the pair regularly as a couple would, of course, be consistent with Ms Taylor’s status as a carer and having the washing out at Corso Street instead of Abbotsford Place is quite consistent with her having her domestic base at her own home. However, we note, in particular, the evidence of lights and sounds by day and night at Corso Street and the complete absence of similar signs of occupation at 16C. The main difficulty for the applicant is that we do not regard Ms Taylor as a credible witness. Her approach left little room for the possibility of an explanation based on misunderstanding. She would accept no change in the pattern of living. They spent their days at Corso Street and their evenings and nights at 16C. There was never any question of staying at Corso Street for any significant period.

Although, we accept the validity of the broad approach based on assessment of credibility, we consider it appropriate to comment briefly on the question of the onus of proof. The normal onus is on an applicant. However, one of the criteria for a secure tenancy is that the property is the tenant’s “only or principal home”. Where, as in the present case, a landlord accepts that a house is let under a secure tenancy, it might be reasonable to treat that as, in itself, sufficient to justify an inference that the tenancy complies with section 61(2)(c) unless some special circumstances are established by the landlords. Where special circumstances are established, the resultant evidential onus may be hard to determine and will depend on the nature of the circumstances. Plainly, marriage is an important circumstance. In the usual way of things, a married couple will go to live together. Where both have homes before the marriage, they will have to decide which house is to be the matrimonial home and decide what is to be done with the other. Here, the wife’s house was furnished to a higher standard than the husband’s, with full amenities such as carpets, cooker, television, musical equipment. It would be the residence of choice and there is evidence that they, indeed, chose to live there. There may be many situations where, for good reason, the usual way of things is departed from but we are satisfied that living together in one house is still such an expected thing that the fact of marriage in this case places an evidential onus back on the applicant.

The applicant has not satisfied us that in the year immediately prior to the application he was at any time in occupation of the house. But we can go further and say that we are satisfied on balance of probabilities that the applicant did intend to make his home at Corso Street after his marriage and did in fact do so. The evidence of the neighbours as to noises and lights, shows that the arrangement was a residential one and not just a matter of convenience during the day. That second-hand evidence is supported by the direct evidence of the findings of Mrs Rennie. It provides an explanation for her findings and for the confused evidence given on behalf of the applicant. We have no sound material to set against the evidence relied on by the respondents.

The application must, therefore, be refused.