CA-2024-002756 - [2025] EWCA Civ 1038

Because of the way that the appeal developed in this court, it is necessary to examine the way that the case was put at trial. Islington’s case was that Mr Seales had died, and that there was no one who was entitled to succeed to his tenancy. The Defence pleaded in paragraph 4 (a) that from 2004 Mr Seales was in a relationship with Ms Patel and that from 2012 they lived together as husband and wife. But it went on to say that Ms Patel “later ceased to reside at the premises” (without saying when). Paragraph 8 set out the relevant parts of Islington’s policy; and went on to plead in paragraph 10 (c) that:

“The meaning of “stepchild” would now be regarded as including “a child of one’s partner by a former relationship.” On this basis [Ms Abdelrahman] is [Mr Seales’] stepchild.”

Paragraph 10 (d) then pleaded that she came within Islington’s policy as being within the list of relatives set out in it.

It is clear from the judge’s judgment that Ms Abdelrahman’s case was put on the basis that the meaning of “stepchild” was that given by the online Oxford English Dictionary (updated in 2023):

“A person who is related to another as a result of a subsequent marriage or relationship of a parent, rather than through blood; a stepchild, step-parent, step-sibling etc.”

Accordingly, the argument went, a stepchild is not restricted to a child of a spouse by a previous relationship. It can now include a child by a previous relationship of a person in a subsequent relationship. Accordingly, it was argued, Ms Abdelrahman fell within that dictionary definition of “stepchild” and was entitled to succeed to the tenancy.

That was the sole basis on which it was argued at trial that Ms Abdelrahman was entitled to succeed to the tenancy. There was no argument based on a qualitative assessment of the relationship between Ms Patel and Mr Seales. It was not suggested that the question whether they were living together as husband and wife was of any relevance to the issue before the judge.

Because the precise nature of the relationship between Ms Patel and Mr Seales was not relevant to the pleaded issues, the judge did not (and was not required to) embark on any fact-finding exercise in relation to that. As noted, she rejected the case based on the dictionary definition on which Ms Abdelrahman relied.

Ground 1 of the grounds of appeal in the Appellant’s Notice asserted that the judge was wrong to decide that the word “stepchild” was limited to situations where the parental couple were married or were civil partners; and that she was wrong not to accept that Ms Abdelrahman’s relationship with Mr Seales “had all the hallmarks of her being a member of his family”. Again, the focus is on the relationship between Ms Abdelrahman and Mr Seales, not on the relationship between Ms Patel and Mr Seales.

That focus was repeated in the skeleton argument prepared for this appeal in which reliance was once again placed on the definition in the on-line Oxford English Dictionary.

In opening the appeal, however, Ms Davies KC advanced a different meaning of “stepchild”. Her contention was that since section 86A (5) gave the same rights of succession to persons living together as a married couple or civil partners as those given to a spouse or civil partner, the meaning of “stepchild” in section 113 should include the biological child of a person living with the deceased tenant as if they were a married couple or civil partners.

In answer to a question from Nugee LJ, Ms Davies said that whether a relationship satisfied this test was to be assessed as at the date of the tenant’s death.

This argument had not been foreshadowed in any previous material. Plainly, in order for Ms Abdelrahman to be entitled to succeed on this basis a finding would have to be made about the nature of the relationship between Ms Patel and Mr Seales as at the date of his death. But the judge made no finding. The evidence contained in the witness statements which we have seen is equivocal. Although Ms Davies stressed the point that there was no dispute about the evidence, that is because the evidence about the nature of the relationship between Ms Patel and Mr Seales was not relevant to the issues before the court.

In my view this is a prime example of a case in which an appellate court will not permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial: Singh v Dass [2019] EWCA Civ 360 at [17]. I have no doubt that if the relationship between Ms Patel and Ms Seales had been relevant the trial would have been conducted differently.

I would not therefore permit this new argument to be advanced. I turn, therefore, to the case as argued below.