Haneen Abdelrahman v The Mayor and Burgesses of the London Borough of Islington (2025) EWCA Civ 1038
Islington Council tenancies had a discretionary succession policy on the death of the tenant, which included a ‘stepchild’ as someone who could succeed to the tenancy, assuming the other conditions were met.
Ms Abdelrahman is the daughter of Ms Patel, who had been in a relationship with Mr Seales, the late secure tenant of Islington since 2011. Ms Patel and Mr Seale had not married. Ms A had been living with Mr S between 2018 and his death in 2021, though Ms P did not live at the property, at least during this time.
Ms A applied for succession under the discretionary policy. Islington refused on the basis that she was not Ms S stepchild and brought possession proceedings. A possession order was granted and Ms A appealed.
The appeal was initially on the basis 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”.
At frist instance, the defence had been on the basis that the 2024 online Oxford English Dictionary definition of ‘stepchild’ was
“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.”
and that Ms A clearly fell within this definition.. This had been rejected by the Judge, but it meant that there was no tested evidence or fact finding as to the nature of Mr S and Ms P’s relationship, in particular whether it could fall under ‘persons living together as a married couple of civil partner’.
For this reason, Ms A was refused permission by the Court of Appeal to advance a new argument that
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.
The Court of Appeal considered dictionary definitions of ‘step child’, noting that the 2024 online OED definition was an outlier in not requiring the marriage (or civil partnership) of the parent and step- parent.
The Court of Appeal also re-stated that the list of possible successors at section 113 was a closed list – Wandsworth LBC v Michalak (2002) EWCA Civ 271 and did not extend to a ‘de facto step-child’.
On interpretation of Islington’s policy, that was a matter for the court.
In my judgment Islington’s policy is designed to be capable of implementation by a tenancy officer with the minimum of investigation. To adopt the meaning of “stepchild” argued at trial is likely to lead to costly and time-consuming investigation or even litigation as to who is and who is not a stepchild. That is the sort of situation which the policy is designed to avoid. HHJ Bloom made that point at (43) and I agree with her. The judge continued at (44):
“If one reads section 113 there is a clear differential drawn between those who live together and those who are married or civil partners. In subsection (1) (a) a person who is in a direct relationship with the deceased can establish themselves as a successor. In relation to more distant relationships, such as children or parents et cetera in subsection (1) (b) it is notable that it is only a relationship by marriage or civil partnership that is to be treated as a relationship by blood. The subsection does not suggest, for instance, that if people live together their offspring will be treated as blood relations i.e. that such a person would be a niece. Why, then, should a stepchild be in a different position?”
I agree with that too. In my judgment the judge was right to reject the meaning of “stepchild” for which Ms Abdelrahman argued at trial.
It follows that, on the basis of the arguments advanced below, Ms Abdelrahman was not qualified to succeed to the tenancy under Islington’s policy.
As to whether Islington’s policy amounted to discrimination under article 8 and article 14 of the Convention on Human Rights, the initial issue was whether Ms A was of ‘other status’ sufficient to engage article 14.
Ms A argued
that she has a “status” in that she is the biological child of one of two adults who were in an intimate relationship but were not married to each other, in contradistinction with a biological child of an adult who is married to (or in a civil partnership with) their partner.
The Court of Appeal was willing to assume (but not decide) that Ms A had a status for the purpose of considering the further argument.
The appropriate test, as this was coal housing was whether the policy was ‘manifestly without reasonable foundation’ Haringey London Borough Council v Simawi (2019) EWCA Civ 1770.
The aim of the policy – the allocation of social housing according to housing need rather than a relationship with a deceased tenant – was clearly legitimate.
The first instance court had found the policy to be objectively reasonable and proportionate. The test on appeal was whether that conclusion was wrong, not whether the appeal court might have come to a different decision. R (Z) v Hackney LBC (2020) UKSC 40.
Whether an assessment of proportionality is “wrong in the relevant sense” entails demonstrating that the first instance judgment contains an identifiable flaw in the judge’s reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion. But it is not enough simply to demonstrate an error or flaw in reasoning. It must be such as to undermine the cogency of the conclusion. Accordingly, if there is no such error or flaw, the appeal court should not make its own assessment of proportionality.
There were no such flaws identified in the present case.
Finally, on Ms A’s new argument that section 3 Human Rights Act 1998 applied such that the policy should be ‘read down’ to be ECHR compliant, this was mistaken.
There was no infringement of convention rights, so section 3 did not apply. In any event, Islington’s policy was not legislation, and section 3 only concerned primary or secondary legislation.
Appeal dismissed.
There have been a number of cases in which it has been argued that where a person is not entitled to succeed to a tenancy their Convention rights have been infringed. None has so far succeeded. This is another such case. I would dismiss the appeal.
0 Comments