Housing – Secure tenancy – Succession – Defendant’s mother holding secure tenancy of property by statutory succession – Claimant local authority seeking possession after death of mother – Defendant applying for declaratory relief in relation to the “one succession rule” in sections 87-88 of Housing Act 1985 – Whether defendant entitled to succeed to secure tenancy – Whether statutory “sole succession” rule discriminatory – Whether rule compatible with human rights – Claim dismissed
In 1984, the claimant local authority let a two-bedroom maisonette at 25 Chettle Court, Ridge Road, London N8 to the defendant’s parents on a joint secure tenancy. When the defendant’s father died in 2001, the mother became the sole tenant by succession pursuant to section 87 of the Housing Act 1985. When his mother died, the defendant wished to become the tenant of the property. However, under the “sole succession” rule in sections 87 and 88 of the 1985 Act, he was not entitled to succeed to the secure tenancy as a qualifying member of the family because his mother had herself been a successor. The claimant local authority served a notice to quit on the defendant, refused his application for a discretionary tenancy of the property and issued proceedings for possession.
The defendant contended, amongst other things, that the sole succession rule was discriminatory, contrary to article 14 of the Convention for the Protection Of Human Rights and Fundamental Freedoms (the Convention) read with article 8, in that it treated a person whose spouse had died, and that person’s qualifying family members, less favourably that a person who was divorced from their spouse, and that person’s qualifying family members. By virtue of section 87(2) of the 1985 Act, a divorced person who took over a secure tenancy by assignment pursuant to a property adjustment order made by the court was not regarded as a successor so that that person’s family members were entitled to succeed to that person’s tenancy. The defendant asked the court to exercise its power under section 3 of the Human Rights Act 1998 to interpret sections 87 and 88 of the 1985 Act in a manner compatible with the Convention; or, alternatively, declare under section 4 of the 1998 Act that sections 87‑88 of the 1985 Act were incompatible with the rights and fundamental freedoms in article 14 in conjunction with article 8 of the Convention, as set out in schedule 1 to the 1998 Act.
Held: The claim was dismissed.
(1) The prohibition of discrimination under article 14 raised four questions, although they were not rigidly compartmentalised and had to be looked at holistically, namely: (i) whether the circumstances fell within the ambit of one or more Convention rights, (ii) whether there had been a difference of treatment between two persons who were in an analogous situation, (iii) whether the difference of treatment was on the ground of one of the characteristics listed or “other status”, and (iv) whether there was an objective justification for that difference in treatment. Because this was a claim for possession of the property which the defendant had occupied as his home for some years, it fell within the ambit of article 8 of the Convention: Re McLaughlin [2018] UKSC 48 applied.
(2) Whether one person was in an analogous situation to another could only be considered in light of the relevant statutory scheme. The position of a qualifying family member following the death of a widowed tenant under a secure tenancy was arguably analogous to the position of a qualifying family member following the death of a divorced tenant. The proscribed grounds in article 14 could not be unlimited but a liberal or generous approach to determining status for purposes of discerning the scope of article 14 was appropriate. Whether a person was widowed or divorced was capable of being a personal characteristic or status for purposes of article 14. Whether a person was a child of someone who was widowed or a child of someone who was divorced was more peripheral or debatable as a personal characteristic for article 14 purposes but it was capable of being so in appropriate circumstances. It was not the status of a person (C) as the child of a widow or the child of a divorcee that determined whether he could succeed as a secure tenant. It was the legal mechanism by which the person from whom he would succeed (P) acquired the secure tenancy that determined whether the one succession rule was engaged. If P acquired the secure tenancy upon the death of a joint secure tenant, then P was a successor under section 88(1) and C could not succeed to the secure tenancy. If P acquired the secure tenancy upon a judicial assignment under one of the statutory provisions referred to in section 88(2), then P was not a successor and C could succeed to the secure tenancy: R (on the application of Gangera) v Hounslow London Borough Council [2003] HLR 68 applied.
(3) Sections 87 and 88 of the Housing Act 1985 were concerned with a local authority’s ability to manage and distribute its social housing stock fairly. That clearly came within the scope of “general measures of economic or social strategy” for which a wide margin of appreciation was usually allowed to the state. The proper test to apply in considering the compatibility of the scheme for succession set out in sections 87 to 88, and specifically the differential treatment of succession via death versus obtaining a sole tenancy via judicial assignment in the context of divorce, was whether it was “manifestly without reasonable foundation”. The absence of evidence of a specific contemporaneous parliamentary justification for section 88(2) of the 1985 Act, or its predecessor in section 31 of the Housing Act 1980, was not fatal. Section 88(2) was a provision of primary legislation that clearly and deliberately created an exception to the rule under section 88(1)(d) that a person who became a tenant on the tenancy being assigned to him was a successor. Section 88(2) had a rational and legitimate purpose and was therefore neither arbitrary nor capricious. It could not be said to be manifestly without reasonable foundation.
Sam Phillips (instructed by London Borough of Haringey Legal Services) appeared for the claimant; Toby Vanhegan and Hannah Gardiner (instructed by Burke Niazi Solicitors) appeared for the defendant; Ben Lask (instructed by the Treasury Solicitor) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript Haringey London Borough Council v Simawi
