Housing Update: Is the “one succession rule” discriminatory?
This is the question considered by the High Court in the case of London Borough of Haringey v Simawi & Anor (2018) EWHC 2733.
s87 and s88 Housing Act 1985 (in force at the relevant time) provided that a person could succeed to the tenancy if he occupied it as his only or principal home at the time of the tenant’s death and neither (a) he is the spouse of the tenant or (b) is another member of the tenant’s family and has resided with the tenant throughout the 12 month period ending with the tenant’s death. This rule applies unless the deceased tenant was a successor himself.
The legal point challenged on the grounds of discriminatory was whether the difference in treatment in the following two scenarios meant that s87 and 88 were discriminatory – the first scenario being a person became a sole tenant on the death of a former tenant considered against the second scenario of a person who became a sole tenant upon assignment by the court in divorce proceedings, the latter was not a succession for the purposes of the Housing Act 1985. The question was therefore, was scenario (a) discriminatory?
The facts of the case were that Mr Simawi was the son of Mr and Mrs Simawi who were joint secure tenants. The father died in 2011 and Mrs Simawi became the sole tenant but survivorship/statutory succession. Mrs Simawi died in 2013 and Haringey served a notice to quit after refusing the son’s request to succeed as a family member. Haringey issued possession proceedings on the basis of a failed succession claim. This is a claim that will be familiar to many housing practitioners.
A possession order was made in the county court, overturned by the Circuit Judge on appeal and then transferred to the High Court to deal with the son’s arguments that the court should:
- Exercise its powers under s3 of the Human Rights Act 1988 to “read down” or interpret s87-88 in his favour; or
- Declare under s4 of the HRA that s87-88 are incompatible with the Convention articles 14 and 8.
The High Court accepted that Article 8 was engaged and that the positions on death and divorce could be considered analogous and that the treatment in each situation was different. The Court then had to consider if that different of treatment arose from a protected characteristic or listed as “other status” and if so, is there an objective justification for that difference in treatment.
Was the difference in treatment due to a protected characteristic or other status? – applying the decision in R (Gangera) v Hounslow LBC (2003) EWHC 794 the High Court concluded that the reason Mr Simawi could not succeed to his parent’s tenancy was not linked to his status at all but was due to his mother becoming a sole tenant and was herself a successor. The different in treatment follows from the fact of a previous succession not because of the status of the Claimant. The High Court considered that it was correct to dismiss his claim on that basis but went on to consider the second point of whether there was an objective justification in the event that they were wrong on the first.
On the second point the Court considered that the test was whether the measure was “manifestly without reasonable foundation”. It held that the primary legislation must have been considered at the time so as to create a deliberate exception to the rule under s88(1)(d). Also, the Department’s retrospective justification strengthens the position that it has a “rational and legitimate purpose and is therefore neither arbitrary not capricious”. Therefore, the s88 measures were clearly not without reasonable foundation.
The claim was dismissed but it is understood that permission to appeal is being sought so watch this space.
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