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 :
“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.