Statutory prohibition on second successions to secure tenancies held to be lawful (London Borough of Haringey v Simawi)
Local Government analysis: In this case, the High Court was called upon to consider whether the statutory prohibition on second successions to secure tenancies amounted to unlawful discrimination in the enjoyment of a person’s rights under Article 8 of the European Convention on Human Rights (ECHR) where the first succession occurred following death rather than divorce. Mr Simawi could not succeed to his late mother’s secure tenancy because his late mother had herself been a successor (having succeeded to the tenancy as a sole tenant upon the death of her husband with whom she had previously held a joint tenancy). Since the legislation on successions to secure tenancies provided that a person to whom a tenancy is assigned by a court in divorce proceedings is not to be treated as a successor, Mr Simawi argued that he, as a child of a widowed tenant, was being treated differently from a child of a divorced tenant. Accordingly, he argued that he was suffering unlawful discrimination under Article 14 ECHR in the enjoyment of his Article 8 rights. The High Court rejected his argument, holding that the difference in treatment was not because of any personal characteristic/status which he held but simply because of the legal mechanism by which his mother, the previous tenant, had herself succeeded to the tenancy. Written by Alexander Campbell, barrister at Field Court Chambers.
The Mayor and Burgesses of the London Borough of Haringey v Simawi  EWHC 2733 (QB)
What are the practical implications of this case?
Firstly this decision is a reminder of some important principles of public bodies in human rights cases (and, in particular, Article 14 discrimination cases):
- that states enjoy a considerable margin of appreciation in relation to matters of public policy such as the allocation of social housing and that the courts can only interfere if the public policy decision which the state has reached is ‘manifestly without reasonable foundation’
- that a liberal approach is to be taken in deciding whether a personal characteristic or status falls within the ambit of Article 14 ECHR
At the same time, however, the decision shows that the courts will closely analyse the circumstances of a party alleging discrimination under Article 14 in order to see whether that person has suffered a difference in treatment which is truly because of a personal characteristic/status. Where, as in Mr Simawi’s case, the difference in treatment was not specifically and directly because of his personal characteristic/status, no case of unlawful discrimination under Article 14 ECHR can arise. Where a party seeks to raise an argument of unlawful discrimination under Article 14, the accused public body should therefore take care to analyse whether any difference of treatment was in fact because of a personal characteristic/status or not.
The judgment is also important for the judge’s observations in relation to whether any discrimination could be objectively justified. There was limited evidence from when the legislation on succession to secure tenancies was first introduced as to why Parliament had seen fit to treat divorce cases differently in the matter of successions. Nevertheless, the Court accepted ex post facto evidence from a current Government adviser rationalising the distinction and giving policy justifications for it. This approach will be welcomed by public bodies as it suggests that they can seek to justify a policy in the present day without having to prove what the policy motivations behind it were when it was first introduced many years or even decades ago.
What was the background?
Mr Simawi lived with his parents who had been granted a secure tenancy of a Haringey Council property in 1994. In 2001 his father passed away and his mother succeeded to the tenancy as a sole tenant. In 2013 Mr Simawi’s mother passed away and Mr Simawi sought to succeed to the tenancy.
Haringey Council refused to grant Mr Simawi a discretionary tenancy of the property, stating that the evidence provided by Mr Simawi did not prove that he had lived at the property for the requisite period of five years. Ultimately that decision was held to be unlawful by the High Court in a separate hearing on the ground that Haringey had failed to apply its own policy correctly.
Crucially, however, Mr Simawi argued that section 88 of the Housing Act 1985 (HA 1985) violated his rights under Articles 14 and 8 ECHR. HA 1985, s 88(1) prohibited Mr Simawi from succeeding because the previous tenant, his mother, had herself succeeded on the death of a previous tenant. However section 88(2) provides that a tenant to whom a tenancy is assigned by a court in divorce proceedings is not considered to be a successor unless their ex-spouse was a successor. In other words, Mr Simawi argued that as the child of a widowed parent, he was treated differently (and therefore unlawfully) from a child of a divorced parent.
What did the court decide?
The court held that in a case concerning Article 14 ECHR, it was required to apply the four-stage test used by Baroness Hale in Re McLaughlin  UKSC 48:
- Did the circumstances fall within the ambit of a Convention right?
- Was there a difference in treatment between persons in an analogous situation?
- Was that difference in treatment because of one of the characteristics listed or ‘other status?’
- Was there an objective justification for the difference in treatment?
The circumstances undoubtedly fell within the ambit of a Convention right (Article 8).
The court proceeded on the basis that the position of a family member following the death of a secure tenant was analogous to the position of a family member following the death of a divorced secure tenant.
The court took the well-established position that a generous meaning should be given to the words ‘other status’ in Article 14 and that whether a person is the child of a widowed or a divorced parent could be a relevant status for the purposes of Article 14 in appropriate circumstances. However, the court held that whether Mr Simawi could succeed to his mother’s tenancy was not determined by his status as the child of a widow versus the child of a divorcee; instead it was determined by the legal mechanism by which the person from whom he would succeed had acquired the tenancy. Accordingly, the Court held that any difference in treatment was not because of a ‘status’ of Mr Simawi within the meaning of Article 14.
The court went on to find that any discrimination would in any event be justified. The state has a margin of appreciation in matters of policy and the courts could only intervene if the state had acted ‘manifestly without reasonable foundation.’ The court accepted evidence from a Government senior policy adviser justifying treating divorcees differently from widows, in particular so as not to deter couples from divorcing in cases of domestic violence.
- Court: High Court, Queen’s Bench Division
- Judge: Murray J
- Date of judgment: 19 October 2018
Alexander Campbell is a barrister at Field Court Chambers, and a member of LexisPSL’s Case Analysis Expert Panel. Suitable candidates are welcome to apply to become members of the panel. Please contact firstname.lastname@example.org.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
Sharon Porter-Gayle Senior Associate of Prince Evans and Head of Housing Management (Social Housing) says: “It is still too early to know if there will be an appeal. If the case had been decided in the Defendants favour it would have far reaching ramification for Local Authorities across the country . The ability to undertake its housing obligation would be curtailed and the unending tenancies created. This would have been in direct opposition to the changes to the laws of succession bought in by the Localism Act 2011”.
If you have any queries concerning this or any other matter please contact Sharon Porter-Gayle Senior Associate of Prince Evans and Head of Housing Management (Social Housing) on 020 8567 3477 or e-mail email@example.com.