Succession and discrimination – death or divorce

London Borough of Haringey v Simawi & Anor (2018) EWHC 2733

This was a challenge, arising from a possession claim, to the ‘one succession’ rule on secure tenancies.

Mr S was the son of Mr and Mrs Simawi, who were the joint secure tenants of a Haringey property, beginning in 1994. The father died in 2011 and Mrs Simawi became the sole tenant by succession. Mrs S died in 2013 and two months later, Haringey served notice to quit and then, after a discretionary tenancy was refused, brought possession proceedings against Mr S.

A possession order was made at first instance. This was overturned on appeal to a circuit judge, and the present claim was transferred to the High Court to deal with Mr S arguing that the court should:

i) exercise its power under section 3 of the Human Rights Act 1998 (“the 1998 Act”) to “read down” or interpret sections 87-88 of the Housing Act 1985 in the manner for which he contends; or

ii) declare under section 4 of the 1998 Act that sections 87-88 of the Housing Act 1985 are incompatible with the rights and fundamental freedoms (“the Convention rights”) in article 14 in conjunction with article 8.

Sections 87 and 88 Housing Act 1985 as then in force read:

87. Persons qualified to succeed tenant.

A person is qualified to succeed the tenant under a secure tenancy if he occupies 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;

unless in either case, the tenant was himself a successor, as defined in section 88.

88. Cases where the tenant is a successor.

(1) The tenant is himself a successor if —

(a) the tenancy vested in him by virtue of section 89 (succession to a periodic tenancy), or

(b) he was a joint tenant and has become the sole tenant, or

(c) the tenancy arose by virtue of section 86 (periodic tenancy arising on ending of term certain) and the first tenancy there mentioned was granted to another person or jointly to him and another person, or

(d) he became the tenant on the tenancy being assigned to him (but subject to subsections (2) to (3)), or

(e) he became the tenant on the tenancy being vested in him on the death of the previous tenant, or

(f) the tenancy was previously an introductory tenancy and he was a successor to the introductory tenancy.

(2) A tenant to whom the tenancy was assigned in pursuance of an order under section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings) or section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.) is a successor only if the other party to the marriage was a successor.”

Mr S did not argue that the one succession rule in general was incompatible with article 14 and article 8. The argument was limited to the operation of the relevant provisions.

The argument was that there was discriminatory treatment in that a person who became a sole tenant on the death of a former tenant as opposed to a person who became a sole tenant upon judicial assignment of the tenancy in a divorce. The latter was not a succession for the purposes of the 1985 Act, but it was an analogous situation. Similarly, the qualifying family member of the ‘new’ sole tenant was treated differently in each situation, despite their position being analogous.

The High Court, cautiously, accepted that the positions (death/divorce) could be considered as analogus and that the treatment was different. It was generally accepted that Article 8 was engaged.

So, adopting Baroness Hale’s formulation in Re McLaughlin (2018) UKSC 48, there remained two questions.

Is that difference of treatment on the ground of one of the characteristics listed or ‘other status’?
Is there an objective justification for that difference in treatment?”

On the issue of treatment due to a characteristic or other status

Following R (Gangera) v Hounslow London Borough Council (2003) EWHC 794 (Admin), (2003) HLR 68, in which Moses J held:

“(H)owever widely ‘status’ [under article 14 of the Convention] may be interpreted it is clear to me that there has been no discrimination on the grounds of status whatsoever. The reason why the claimant is not entitled to succeed to his mother’s tenancy does not depend upon his status at all. It is because his mother had become the sole tenant and therefore, by virtue of the operation of s.88(1)(b) of the 1985 Act, she was herself a successor. The difference in treatment follows from the fact of a previous succession not because of the status of the claimant. His chosen comparisons are not true comparisons at all. In his two examples the comparators were succeeding to a secure tenant who was not himself a successor within the meaning of s.88(1).”

This reasoning would appear to provide an answer also to Mr Simawi’s claim. Like the comparators in Gangera, Mr Simawi’s comparator, the child of a divorced tenant, succeeds to a secure tenant who was not herself a successor within the meaning of section 88. Nicklin J notes at [36] of his judgment that Moses J did not consider the effect of section 88(2), and he therefore concluded that the comparators offered by Mr Gangera do not illuminate the point advanced by Mr Simawi in this case. In Gangera, the one succession rule would simply not have been engaged in relation to his comparators. In this case, the one succession rule is specifically disengaged by virtue of a specific provision, section 88(2), that Mr Simawi contends has a discriminatory effect relative to someone in his position. So, it is perhaps correct to conclude that Gangeradoes not provide a “complete” answer to the claim, although, in my view, it comes close to doing so.

And further, it is not C’s status as a child of a widow(er) or divorcee that determines whether he can succeed to a tenancy, it is the legal mechanism by which the person to whom C might succeed acquired the tenancy. Mr S’ assertion that this was a characteristic was artificial.

The claim should be dismissed on that basis. But if this was wrong, the High Court went on to consider objective justification.

Given the wide margin of appreciation on the management of social housing, the property test was whether the measure was ‘manifestly without reasonable foundation’.

Dealing first with the absence of evidence before me of a specific contemporaneous Parliamentary justification for section 88(2) of the Housing Act 1985, or its predecessor in section 31 of the Housing Act 1980, that absence is not, in my view, fatal. To require that in this context sets too high a standard. Section 88(2) is a provision of primary legislation that clearly and, quite obviously, deliberately creates an exception to the rule under section 88(1)(d) that a person who becomes a tenant on the tenancy being assigned to him is a successor. The presumption must be that it was considered by Parliament, particularly where it is clear from the terms of the provision itself that it is predominantly motivated by policy considerations relating to matrimonial proceedings rather than housing policy.

The Department’s justification for the provision, while admittedly ex post facto, strengthens the presumption that section 88(2) has a rational and legitimate purpose and is therefore neither arbitrary nor capricious. In other words, the provision cannot be said to be manifestly without reasonable foundation. Moreover, in paragraph 48 of her witness statement, Ms Walker refers to the Instructions to Parliamentary Counsel at the time the Housing Act 1980 was being drafted and to the Housing Bill 1980 Notes on Clauses (House of Lords), copies of which are exhibited with her witness statement, where express reference is made to the proposed exception where assignment occurs by judicial assignment by order made under section 24 of the Matrimonial Causes Act 1973.

As to Mr Vanhegan’s submission that it is unrealistic to suggest that succession rights are a serious consideration to a victim of domestic violence, it seems to me that it depends entirely on the circumstances. There is generally an acute stage of relationship breakdown involving domestic abuse where the key consideration is getting the victim and any children to a place of safety away from the abuser. Clearly succession rights are unlikely to be a consideration then. But matrimonial proceedings often follow, over subsequent weeks, months and even years. Housing will be a critical issue then. It is reasonable to suppose that Parliament had this firmly in mind when enacting section 31 of the Housing Act 1980, enacting section 88(2) of the Housing Act 1985 and, under the Housing Act 1996, expanding the scope of section 88(2) (with effect from 1 October 1996 to add reference to section 17(1) of the Matrimonial and Family Proceedings Act 1984). The fact that reference to judicial assignment under matrimonial proceedings is also carefully set out in section 91(3) of the Housing Act 1985 as an exception to the general prohibition on voluntary assignment of a secure tenancy set out in section 91(1) of the Housing Act 1985 is further internal evidence from the statute that these provisions are carefully considered and not arbitrary or capricious.

The s.88 measures were clearly not without reasonable foundation.

Claim dismissed.

I understand permission to appeal is being sought.

 

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, Possession, secure-tenancy, Succession.

8 Comments

  1. ‘The father died in 2011 and Mrs Simawi became the sole tenant by succession. Mrs S died in 2013 and two months later…’ As Mrs Simawi was a joint tenant, didn’t she become a sole tenant by way of survivorship rather than succession in the statutory meaning? Obviously, survivorship still counts as succession but there is a subtle difference, if I’m right?

    • It is not clear from the Judgment under which element of s.88 the succession took place. The Judgment notes “It appears to be common ground that Mr Simawi’s mother could have been treated as a successor under any of clauses (a), (b) or (e) of section 88(1) of the Housing Act 1985”. Survivorship is the obvious one. There is, I think no practical difference at all.

    • I was thinking about what if the original tenant died before 3 October 1980. There was no statutory succession regime for secure tenancies before that date, so if the deceased person was a sole council tenant, likely a new tenancy was granted to their spouse (as was usually the case). A new tenancy = a new set of succession rights for family members. If the deceased tenant was a joint tenant, it was survivorship (common law, therefore applied before 3 October 1980). Therefore it would count as succession for the purposes of assessing any future succession rights? I may be wrong & apologies if I’m overthinking this.

    • Situation different pre 1980. But a survivorship pre 1980 would still mean tenant then became a successor for the purposes of s.88(1)(e). A new tenancy for someone who was not a (joint) tenant would not count, I think.

  2. I think the House of Lord case: Birmingham City Council v Walker [2007] All ER (D) 237 (May) deals with this point – joint tenancy which became sole by survivorship pre 1980 does not count as a succession for the purposes of s.88(1)(e) or otherwise, this is summarised at paragraph 11 of the judgment (although in that case the specific provision was s.88(1)(b)). Tenancies only became secure on the coming into force of the Housing Act 1980, anything that happened before the tenancy was secure is not relevant. So either way, whether joint tenant or not, any tenancy where the original tenant, or as the case may be, one of a joint, died before 3 October1980 does not count as a succession.

    Another point that I always thought about this case is that the difference in treatment can be seen from the policy considerations as set out at paragraphs 6 and 8 of Walker, ie the need to ensure that succession only occured once. If you look at the exceptions to s.88(1)(d) ie the assignments at s.88(2) and (3) the tenancies are not being passed on (succeeded) but the “old” tenant is being “swapped” with a “new ” tenant. Where the tenancy has already been passed on – the prohibition on another succession will apply to the “new” tenant. I always considered the different treatment was there to achieve the policy objective of preventing families from being to pass on their secure tenancies to more than one other family member.

    • Yes, of course BCC v Walker applies- thanks (and d’oh)

      Yes, that is the policy consideration, but doesn’t, in itself, deal with the difference to transfer of tenancy by court order on divorce.

  3. Yes, I should have clarified – I do appreciate that the High Court took the view that the characteristic was the means by which the tenant had acquired the tenancy ie transfer by court order not whether they were the child of a widower/divorcee. I was just explaining my own personal view that I had always felt even if they were the same characteristic and were being treated differently the justifiable foundation (in my opinion) was the policy consideration for s88 ie about closing loopholes to the ability of families passing on their secure tenancies to another family member more than once. So assignments by court order after a relationship breakdown or by mutual exchange were excluded (unless the original tenant was already a successor, so had passsed it on already) because they did not operate to ‘pass on’ the tenancy but to ‘swap’ the tenant. As said it was nothing more than a thought…

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