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Discrimination in ‘one succession’ for secure tenancies


Simawi v London Borough of Haringey (2019) EWCA Civ 1770

We saw this case in the High Court – our report here – now this is the court of appeal judgment on Mr S’ appeal, seeking a finding that there was discriminatory treatment in the Housing Act 1985 succession rules between 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 (pre Localism Act amendments). In short, survivorship on a joint tenancy, or succession of spouse/partner on death of sole tenant counts as a succession, while an assignment of tenancy by court order under section 24 of the Matrimonial Causes Act 1973 on divorce does not. Mr S was the child of a spouse who succeeded by survivorship.

The court of appeal was not convinced.

Firstly, was the discrimination (assuming that there was discrimination) on the grounds of some ‘other status’, per Article 14 ECHR?

It is, in my judgment, difficult to see how the “status” on which Mr Knafler is entitled to rely constitutes the ground on which the alleged discrimination exists. It cannot simply be the status of being the child of a widow rather than the child of a divorcee. In the first place, as we have seen, there will be many situations in which the child of a divorcee will not be entitled to succeed to a secure tenancy. Second, if the secure tenancy had originally been granted to Mrs Hussein alone, Mr Simawi would have been entitled to succeed, whether or not she had divorced her husband. So one essential ground of the alleged discrimination must be the historic fact that the tenancy that Haringey granted was a joint tenancy. Nor is it possible to say that the ground of the discrimination is that Mrs Hussein became tenant by succession on death rather than following a relationship breakdown. Exactly the same consequences would have followed a relationship breakdown unless Mrs Hussein had obtained a formal court order under section 24 of the 1973 Act. It is clear, then, that the identification of the discrimination upon which Mr Knafler relies is dependent both on the nature of the tenancy originally granted and also on the manner in which Mrs Hussein became the sole tenant. The agreement into which Haringey and his parents chose to enter cannot, in my judgment, be regarded as anything to do with Mr Simawi’s status. Those contractual arrangements, and the effect of the secure tenancy regime on those arrangements cannot, therefore, be regarded as discrimination on the ground of an “other status” for the purposes of article 14.

Indirect discrimination against women

The argument runs as follows. Statistics show that in England while there are more divorced females than divorced males (2 million as against 1.4 million), there are vastly more widows than widowers (2 million as against 0.73 million). It follows that potential successor spouses are almost three times as likely to be women than men. A successor spouse cannot pass on succession rights to a family member who would otherwise qualify to succeed. Therefore, the inability to pass on succession rights has a greater impact on women than on men. Even though the succession rules are neutral on their face, their practical effect amounts to indirect discrimination against women.
What this argument overlooks is that, based on exactly the same statistics, more women than men benefit from succession rights. On the face of it, the advantages and disadvantages appear to be in balance.

In addition, since there are statistically more divorced women than divorced men, it is likely, all other things being equal, that more women than men will be able to take advantage of the exemption in section 88 (2) and thus be able to pass on succession rights. But when one factors in the likelihood that more women than men will be primarily responsible for childcare following a marriage breakdown, the likelihood of more women than men being able to take advantage of section 88 (2) increases.

Finally, as Mr Grundy points out, Mr Simawi’s own position would be exactly the same whether his father had died before his mother; or his mother had died before his father.

There was no indirect discrimination.

While this was enough to dispose of the appeal, the Court of Appeal went on to consider the test for justification of discrimination.

This would be ‘manifestly without reasonable foundation’, following R (Turley) v Wandsworth LBC (2017) EWCA Civ 189, (2017) HLR 21 and R (DA) v Secretary of State for Work and Pensions (2019) UKSC 21.

On ‘manifestly without reasonable foundation’, the question was whether there was an identifiable flaw in the reasoning of the Judge below. Mr S raised, in particular,

What, then, of relationship breakdown? Given the importance of the one succession rule, and the need to avoid its circumvention, it is entirely understandable why the exception in section 88 (2) is narrowly circumscribed. It is clear that Parliament meant to draw a distinction between an assignment made by court order under section 24 of the Matrimonial Causes Act 1973 (which would not count as a succession) and an assignment made to a person qualified to succeed (which would). It was also clear from instructions to parliamentary counsel that this distinction was deliberate.


It may well be possible to improve the list of exceptions to the one succession rule in a way that would tilt the balance more in favour of family members, and against those who are on the housing list. From the perspective of the family members that would, no doubt, be a fairer outcome. But in this respect, as in many areas of life, the best should not be the enemy of the good. Lord Dyson MR explained in Swift v Secretary of State for Justice (2013) EWCA Civ 193, (2014) QB 373 at [35]:

“But the question is not whether the existing law is unfair and could be made fairer. Nor is it whether the existing law is the fairest means of pursuing the legitimate aim …. Rather, the question is whether the existing law pursues that aim in a proportionate manner. The Strasbourg jurisprudence does not insist that a state pursues a legitimate aim in the fairest or most proportionate way. It requires no more than that it does so in a way which is proportionate. There may be a number of ways in which a legitimate aim can be pursued. Provided that the state has chosen one which is proportionate, Strasbourg demands no more.”

I do not consider that it avails Mr Simawi that Mr Knafler can devise statutory schemes which are fairer or more consistent. Parliament was, in my judgment, entitled to decide that the one succession rule was of prime importance; and that the only exception to it should be as narrowly drawn as possible in order to prevent serious hardship to those in unhappy or abusive relationships.

Appeal dismissed.

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.


  1. Dambu Tenner

    Whilst I do not believe it would likely make a difference (there are clearly situations where the child of a divorcee will be unable to succeed), I was wondering about what the Court of Appeal said at paragraph 23 It had always been my understanding that one joint tenant could not assign the joint tenancy in the sole name of the other joint tenant because they are not potential successors (ie on death the tenancy would pass on by survivorship not succession). This was my understanding of the Court’s decision in Burton v London Borough of Camden [2000] UKHL 8 and also what is stated on Shelter Legal’s website. I also thought a transfer under the FLA 1996 did not operate as an assignment and did not count for succession purposes (the order of the court acts to transfer and no deed is required whereas an assignment under, for example s.24 of the MCA 1973, requires a deed of assignment – Crago v Julian [1991] 24 HLR 306 CA).

    As mentioned at para 47, it does seem that the difference in treatment does not come from whether you are a child of divorced parents or of deceased ones but how the tenancy was granted and transferred (none of which has any bearing on the non-successors circumstances). For example, if the parent of the original tenant whose tenancy was assigned under s.24 of the MCA had been a successor themselves (ie from their own parents), the divorced child would still not be able to succeed (s88(2)).

    Taking aside the aim of ensuring there is no disincentive to divorce for those in abusive marriages, I still feel that if you look at the exceptions in s.88 as a whole, the whole point of the “one succession rule” is to avoid family members being able to get more than one automatic right of passing on the secure tenancy, ie those who assign their tenancies under a mutual exchange will be treated as successors if they were successors themselves (ie had already had the automatic ability to pass on the secure tenancy). I have read that permission to appeal to the Supreme Court is going to be sought.

  2. Dambu Tenner

    I have taken the extract below from the Housing Act 1985 – s.88(2) and (3) – it is up to date, not from the government website:

    (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.
    (3) A tenant to whom the tenancy was assigned by virtue of section 92 (assignments by way of exchange) is a successor only if he was a successor in relation to the tenancy which he himself assigned by virtue of that section.

    I can’t highlight, but you will note that a divorcee will be treated as a successor if the person who assigned them the tenancy was themselves a successor and if you mutually exchange, it won’t count as a succession unless you were already a successor.

    With regards the joint tenancy, I know it is treated as a succession for the purposes of s.88, but my understanding is that it is not a succession ie under s.87. As indicated, I would have put this down to a misunderstanding, but Shelter Legal (see below extract) also provides for the same analysis of Burton v London Borough of Camden:

    Joint tenants

    A joint secure tenancy cannot be assigned to a potential successor. In the event of the death of a joint tenant, the remaining sole tenant will succeed to the tenancy by survivorship, not by statutory succession as defined in the Housing Act 1985.[17] The House of Lords held that the right to assign a secure tenancy to a person who would be qualified to succeed to the tenancy if the tenant died immediately before the assignment did not apply to a joint secure tenancy. [18] (Shelter Legal:

    • Giles Peaker

      S.88(2) does not include the Family Law Act 1996 – that was my point. I’ll come back to the FLA below. That aside, because I don’t think we differ there, and I’m not sure what the actual point was ;-) . On the assignment to joint tenant, yes, the line at para 23, that “Third, the departing spouse may be willing to transfer the tenancy from joint names into the name of the remaining spouse without the need for a court order. Such an assignment, with the landlord’s consent, is permitted by section 91 (3) (c), because the remaining spouse is a person entitled to succeed”, does seem to be in contradiction to Burton v LBC Camden. I presume that there hadn’t been argument or reference to Burton. I don’t think it makes any difference to the logic of the judgment, though.

      I’m also not sure about the last line in para 23 either – “Fifth, if the tenancy had been transferred under a different statutory power (e.g. the Family Law Act 1996 or the Children Act 1989) the assignment or transmission will be permitted by section 91 (3) (b); but it will use up the one permitted succession.”

      The FLA itself provides that transfer of a tenancy from someone who was already a successor will take effect with the transferee as a successor. But my understanding is that is not an assignment (and it is not under s.91(3)(b) in any event). I don;t see why an FLA transfer would be counted as a succession, as the transfer is of (Schedule7 Part 2 s.7(1)(a)):

      the estate or interest which the spouse, civil partner or cohabitant so entitled had in the dwelling-house immediately before that date by virtue of the lease or agreement creating the tenancy and any assignment of that lease or agreement, with all rights, privileges and appurtenances attaching to that estate or interest but subject to all covenants, obligations, liabilities and incumbrances to which it is subject;

      There would be no need for the separate provision that the transfer of a successor’s tenancy takes effect for the transferee as if they had succeeded, if the transfer took effect as a succession.

  3. Dambu Tenner

    The only point I was trying to make is that I was not sure about what the CoA had said at para 23:.

    ie from my original post: “Whilst I do not believe it would likely make a difference (there are clearly situations where the child of a divorcee will be unable to succeed), I was wondering about what the Court of Appeal said at paragraph 23…It had always been my understanding that one joint tenant could not assign the joint tenancy in the sole name of the other joint tenant because they are not potential successors also thought a transfer under the FLA 1996 did not operate as an assignment and did not count for succession….”

    Your subsequent post seems to suggest that we do not differ on querying this part of the judgment (including that it would not make a difference) but when I read your initial reply, it seemed that we might. I had just wondered on my understanding on the above and thought it would be helpful to see if I was missing something.

  4. chief

    The Supreme Court has refused permission to appeal: “A point of law of general importance is involved but the decisions of the lower courts, particularly on the question of justification make this an unsuitable case for the grant of permission.” That was back in July but the PTA decisions for July through to September have only recently been published.


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