Housing – Secure tenancy – Succession – Appellant’s mother holding secure tenancy of property by statutory succession – Respondent local authority seeking possession after death of mother – Appellant applying for declaratory relief in relation to the “one succession” rule in sections 87-88 of Housing Act 1985 – Whether appellant entitled to succeed to secure tenancy – Whether statutory “one succession” rule discriminatory – Whether rule compatible with human rights – Appeal dismissed
In 1984, the respondent local authority let a two-bedroom maisonette at 25 Chettle Court, Ridge Road, London N8 to the appellant’s parents on a joint secure tenancy. When the appellant’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 appellant wished to become the tenant of the property. However, under the “one 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 respondent local authority served a notice to quit on the appellant, refused his application for a discretionary tenancy of the property and issued proceedings for possession.
The appellant contended that if his parents had been divorced, and the tenancy had been transferred to his mother by court order in the course of the divorce proceedings, that transfer would not have counted as a first succession. In that situation, he would have been entitled to succeed to the tenancy on his mother’s death. The fact that he could not do so in the events which happened amounted to unlawful discrimination on the ground of his status, contrary to article 14 of the Convention for the Protection Of Human Rights and Fundamental Freedoms, read in conjunction with article 8 of the Convention.
The High Court rejected that argument: [2018] EWHC 2733 (QB); [2018] PLSCS 180. The appellant appealed.
Held: The appeal was dismissed.
(1) Proceeding on the basis that the judge’s conclusion that being the child of a widowed parent rather than a divorced parent was capable of amounting to an “other status” for the purposes of article 14 was tenable, the difference in treatment of which the appellant complained was not discrimination on the ground of that other status. However widely status might be interpreted, it was clear that there had been no discrimination on the grounds of status. The reason why the claimant was not entitled to succeed to his mother’s tenancy did not depend on his status at all. It was because his mother had become the sole tenant and therefore, by virtue of the operation of section 88(1)(b) of the 1985 Act, she was herself a successor. The difference in treatment followed from the fact of a previous succession not because of the status of the claimant. It was difficult to see how the status on which the appellant was entitled to rely constituted the ground on which the alleged discrimination existed: R (Gangera) v Hounslow London Borough Council [2003] EWHC 794 (Admin), [2003] HLR 68 considered.
The identification of the discrimination upon which the appellant relied was dependent both on the nature of the tenancy originally granted and on the manner in which his mother became the sole tenant. The agreement into which the respondent and his parents chose to enter could not be regarded as anything to do with the appellant’s status. Those contractual arrangements, and the effect of the secure tenancy regime on those arrangements, could not be regarded as discrimination on the ground of an “other status” for the purposes of article 14. The only group that was rescued was the group whose family member secured a transfer of the tenancy through the mechanism of a formal order under section 24 of the Matrimonial Causes Act 1973. Those who had taken transfers under different statutory provisions, and those who had taken transfers by agreement were not rescued. Therefore, to the extent that the appellant had been discriminated against, that discrimination had not been discrimination on the ground of his other status: R (on the application of Stott) v Secretary of State for Justice [2018] 3 WLR 1831 applied.
(2) The succession rules in sections 87 and 88 did not amount to indirect discrimination on the basis that women benefited from the succession rules and were more likely to benefit from such rights and assignments under section of the 1973 Act. What the appellant’s argument overlooked was that more women than men benefited from succession rights. On the face of it, the advantages and disadvantages appeared to be in balance. In addition, since there were statistically more divorced women than divorced men, it was likely, all other things being equal, that more women than men would be able to take advantage of the exemption in section 88(2) and thus be able to pass on succession rights. But when one factored in the likelihood that more women than men would 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) increased. The appellant’s own position would be exactly the same whether his father had died before his mother; or his mother had died before his father. Therefore, the succession rules did not amount to indirect discrimination upon which he could rely.
(3) In any event, the alleged discrimination was justified. The correct test was whether the justification was manifestly without reasonable foundation. There was no doubt that the one succession rule was amply justified. If the rule was to be effective, the legislation had to prevent it from being circumvented or outflanked. On the death of a sole tenant, succession to the deceased’s tenancy was a true succession, and thus exhausted the one succession rule. But in many cases, where the dwelling subject to the tenancy was the matrimonial home, the tenancy would have been granted in joint names to both spouses or cohabitants. If becoming sole tenant by right of survivorship were not to count as a succession, there would be a serious disincentive to the grant of joint tenancies to married couples or cohabitants; and the survivor of joint tenants would have an unjustified advantage over the survivor of a sole tenant.
Stephen Knafler QC, Toby Vanhegan and Hannah Gardiner (instructed by Burke Niazi Solicitors) appeared for the appellant; Nicholas Grundy QC and Sam Phillips (instructed by London Borough of Haringey Legal Services) appeared for the respondent; Ben Lask (instructed by the Secretary of State for Housing, Communities and Local Government) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript of Haringey London Borough Council v Simawi
