Adrian Davis examines the High Court’s decision in The London Borough of Haringey v Mukhlis Simawi and Secretary of State for Housing, Communities and Local Government (Interested Party) [2018] EWHC 2733 (QB)

30 October 2018

Adrian Davis examines the High Court’s decision in The London Borough of Haringey v Mukhlis Simawi and Secretary of State for Housing, Communities and Local Government (Interested Party) [2018] EWHC 2733 (QB), in which the defendant complained that the ‘one succession rule’ contained in section 87-88 of the Housing Act 1985 breached his rights under Articles 14 and 8 of the ECHR.

The facts

Haringey granted a joint secure tenancy of a property to Mr Aziz Simawi and Mrs Fatima Hussein, the defendant’s parents.  Mr Aziz Simawi subsequently died and Mrs Hussein was recognised as the sole tenant by succession.  Twelve years later, Mrs Hussein died.  Mr Mukhlis Simawi applied to succeed to the tenancy either by statute or through a discretionary offer.  Haringey rejected his application, served a Notice to Quit and issued possession proceedings against him.

Before the District Judge in the County Court, Mr Simawi argued first, that the ‘one succession rule’ in sections 87-88 HA 1985 was incompatible with his rights under Articles 14 and 8 of the ECHR; and second, that Haringey’s decision not to make him a discretionary offer of the tenancy was unlawful because it had failed to correctly apply its own policy.  The District Judge found against him and made a possession order.  On appeal, Mr Simawi was successful on his second argument and the claim for possession was dismissed.  Nevertheless, he continued to pursue his first argument and the case came before Mr Justice Murray.

The defendant’s arguments

Before the High Court, Mr Simawi refined his case, complaining that the manner in which sections 87-88 HA 1985 operated constituted unlawful discrimination, rather than alleging the ‘one succession rule’ was in itself incompatible with Articles 14 and 8 of the ECHR.

Primarily, he argued the ‘one succession rule’:

  • treated differently a person (‘the widow’) who becomes a sole tenant consequent upon the death of a former tenant (and who is therefore a successor under section 88(1)), and a person (‘the divorcee’) who becomes a sole tenant consequent upon a judicial assignment of the tenancy following a divorce (and who may not be a successor under section 88(2)), yet both the widow and the divorcee are in an analogous situation.
  • was discriminatory because a qualifying family member (such as a child) cannot succeed to the tenancy upon the death of the widow (i.e. Mr Simawi’s case); but a child could succeed upon the death of the divorcee.

Accordingly, Mr Simawi asked the Court to either use its power under section 3 of the Human Rights Act 1998 to add the following italicised words into section 88(1)(e), so that it read “88(1)(e) he became the tenant on the tenancy being vested in him on the death of the previous tenant save where he was the spouse or civil partner of the deceased previous tenant, or”; or, if the Court did not consider it possible to use its powers under section 3, to make a declaration of incompatibility under section 4 HRA 1998.

The decision

 The Court applied Baroness Hale’s approach to Article 14 in the case of Re McLaughlin [2018] UKSC 48 by answering the following three questions (it being common ground that Article 8 was engaged):

  • has there been a difference of treatment between two persons who are in an analogous situation?

The Court accepted there was a difference of treatment and, albeit cautiously, that the position of a qualifying family member following the death of the widow was “arguably analogous” to the position of a qualifying family member following the death of the divorcee.  The Learned Judge said: “It is safer, therefore, to proceed, albeit tentatively, on the basis that the positions are analogous, and to consider questions 3 and 4 of Baroness Hale’s four-stage test in McLaughlin”

  • is that difference of treatment on the ground of one of the characteristics or ‘other status’?

Applying “a liberal or generous approach” to determining status, the Learned Judge accepted that whether a person is widowed or divorced is capable of being a personal characteristic or status for the purposes of Article 14.  Furthermore, albeit “more peripheral or debateable”, the Court also accepted that a child of a widow or a child of a divorcee can also be a personal characteristic.

However, the Court accepted the Secretary of State’s submissions that it is not the status of a child of the widow or the child of the divorcee that determines whether he or she can succeed to a secure tenancy.  It is the legal mechanism by which the widow or divorcee acquired the tenancy that determines whether the one succession rule is engaged. Mr Simawi’s contention that the ‘one succession rule’ is disengaged in relation to his chosen comparator (the child of the divorcee) by virtue of that person’s status was artificial.  Accordingly, the answer to this question was ‘no’ and that was sufficient to dispose of Mr Simawi’s case.

  • Is there an objective justification for that difference in treatment?

Nevertheless, the Court went on to consider whether there was an objective justification.  Given the wide margin of appreciation on a state’s management of its social housing stock, the correct test to apply was whether the succession scheme in section 87-88 was ‘manifestly without reasonable foundation.’

The Court concluded the succession scheme (and section 88(2) in particular) was not manifestly without reasonable foundation.  Murray J accepted that (i) section 88(2) ensured the one succession rule did not act as a deterrent or disincentive to divorce, particularly important in the context of a marriage where there has been domestic violence; and (ii) a judicial assignment occurring under one of the provisions in section 88(2) followed a fact-sensitive assessment and considered judicial decision, akin to a fact-sensitive allocation decision by a local authority.

Accordingly, the Court refused to grant Mr Simawi relief under either section 3 or section 4 HRA 1998.

The future…

A number of succession cases in the County Court have been stayed pending the outcome of Simawi, with practitioners and Judges eager to see how the High Court dealt with his arguments on Article 14 ECHR.  In the light of Mr Justice Murray’s careful and detailed dismissal of Mr Simawi’s contentions, it seems those stays can be lifted, and the cases can proceed to their conclusions.  However, this may not be the end of the matter, for it is understood that Mr Simawi is seeking permission to appeal.  Watch this space…