Statutory Succession and Discrimination

November 19, 2019

Genevieve Screeche-Powell evaluates aspects of the Court of Appeal’s decision in Simawi v The London Borough of Haringey [2019] EWCA Civ 1770. The Court considered an argument that the statutory provisions governing succession to secure tenancies unlawfully discriminated against Mr. Simawi as the son of a widow who had become a sole tenant through survivorship.

The facts

Mr. Simawi (S) had been living with his mother when she died in October 2013, and for the 12 months preceding that. Haringey LBC brought possession proceedings on the basis that the S was unable to succeed to the tenancy as his deceased mother was herself a successor.

A secure joint had originally been granted to the S’s married parents. When the S’s father died, his mother became the sole tenant by the right of survivorship. Under the statutory provisions in force, that counted as a first succession (s.88(1)(b) Housing Act 1985) and only one succession is permitted under the statue.

S’s argument was if his parents had been divorced and the tenancy transferred to his mother by court order in the course of divorce proceedings, the transfer would not have counted as a first succession.  In that situation, on his mother’s death he would have been entitled to succeed. Accordingly, he was being unlawfully discriminated against on the ground of his status.  As the son of a widow who became the sole tenant by right of survivorship, he was not entitled to succeed to his mother’s tenancy on her death (in contrast to the position had his parents divorced and the tenancy instead been transferred to his mother during divorce proceedings).

The Court of Appeal’s decision

In considering whether there has been unlawful discrimination under Article 14, the court asks a series of interlocking, and sometimes overlapping questions: (1) does the treatment complained of fall within a convention right; (2) is that treatment on the ground of some “status”; (3) is the Claimant’s situation analogous to some other person who has been treated differently an (4) Justification – is the difference justified, in the sense that it is a proportionate means of achieving a legitimate aim?

It was common ground the answer to (1) was “yes”. The Court of Appeal proceeded on the basis that being the child of a widowed parent rather than a divorced parent is capable of amounting to an “other status”, albeit this was described as a “tenable conclusion”.

The Court considered the other situations in which a child of a divorcee could not succeed to a secure tenancy and found there was no discrimination on the grounds of status, however widely “status” was interpreted. The reason why S was not entitled to succeed did not depend on his status. It was because his mother had become a sole tenant and by virtue of s.88(1)(b) she herself was a successor. The Court rejected S’s alternative argument that the succession rules amount to indirect discrimination of women.

The Court reiterated the importance of judicial restraint in the allocation of public housing when it came to consider Issue (4) – justification. In the field of socio-economic policy, the court will not hold a difference in treatment unjustifiable unless it is “manifestly without foundation” and it is open to policy makers to advance a retrospective justification.

An interesting case for its treatment on what constitutes a ground for discrimination as much as anything else. Article 14 prohibits discrimination on any ground such as sex, religion, political or other opinion, birth or “other status”. The Court were prepared to treat being the child of a widowed parent as capable of amounting to “other status” (albeit tenuous) to bring the claim within the ambit of Article 14. Expect to see more case law featuring Article 14 across the breadth of housing law, but when it comes to justification (Issue 4), a claimant has a stringent test to overcome.