Is it fair to treat the children of secure tenants differently for the purpose of succession depending upon how their deceased parent became the tenant?
This, in essence, is the question at the heart of the long-running case of London Borough of Haringey v. Simawi. The question will be answered at trial in October 2018 following judgment in LB Haringey v Mulkhis Simawi and The Secretary of State for Communities and Local Government  EWHC 290 (QB)
Mathew McDermott discusses this potentially very important judgment.
The facts are straightforward and commonplace.
The Defendant’s mother was a secure tenant of Haringey. She passed away and the Defendant’s application to succeed to her secure tenancy failed because of the ‘no second succession rule’ i.e. because his mother was herself as successor. The mother’s husband – the Defendant’s father – had been granted a secure tenancy originally and this passed to the mother upon his death. Haringey refused the application to succeed made by the Defendant because his mother was herself a successor.
This ‘no second succession’ rule is a result of s. 88 Housing Act 1985, which lists a number of cases where the tenant will himself be a ‘successor’. The most common – and the one that applies in Simawi – is where the tenancy vested in the tenant by virtue of a succession to a periodic tenancy: s. 88(1)(a) Housing Act 1985.
So far, so standard.
Haringey issued a claim for possession on the basis that the Defendant has no right to occupy. The Defendant, however, asserted that this ‘no second succession rule’ is contrary to Articles 8 and 14 of the European Convention on Human Rights (ECHR), Article 14 is all about ensuring that there is no discrimination in the way one enjoys one’s substantive rights under the Convention. As such, Article 14 is a ‘parasitic right’: it is clamped on to a substantive right, which in this case – and most housing cases – is Article 8 ECHR.
Mr Simawi says here that his rights under the ECHR are breached. Why?
It’s all to do with the fact that had his mother become the secure tenant via different means he would now be the secure tenant himself. This is because of s. 88(2) Housing Act 1985, as applicable to this case, which states that the tenant (in this example, Mr Simawi’s mother) will not be treated as a successor if he/she was assigned the tenancy by court order in certain matrimonial proceedings. To put it briefly, if Mr Simawi’s mother had been given the tenancy following a split from Mr Simawi’s father, rather than following his death, Mr Simawi would be the secure tenant.
Mr Simawi, to put the matter in simple terms, says that is not fair. He claims that successor children in the former cases receive less favourable treatment without justification and therefore the rule is incompatible with Articles 14 and 8 of the ECHR. Further, he claims that the distinction drawn in s. 88 is indirectly discriminatory on gender grounds because the surviving sole tenant is more likely to be a woman than a man because women statistically live longer.
The case has been rumbling on in one form or another for a while, and has been piquing the interests of housing lawyers accordingly. This particular judgment is all to do with whether or not the High Court should allow the two-day trial currently listed in October 2018 to go ahead even if the point were to become academic. It would become academic if, say, Haringey was to offer and the Defendant was to accept a secure tenancy.
The lion’s share of the judgment, given by Nicklin J, focuses on when and whether academic points may still be determined. The Secretary of State for Communities and Local Government intervened and argued – Haringey adopted the same arguments – that it was not of public importance and the Court really ought not to bother itself with academic points. The Court heard arguments amongst others that, firstly, the question does not need an answer because it has already been provided in R (Gangera) v Hounslow LBC  HLR 68and, secondly, changes that will be brought about the by the Housing and Planning Act 2016 (on a date to be appointed) mean that the pool of individuals that will be affected will be significantly reduced (this is because this Act will build on changes introduced by the Localism Act 2011 to limit the right of succession to spouses and civil partners).
The High Court concluded that the matter should continue to trial even if the dispute was to become academic. Nicklin J, in his judgment said that Gangera does not provide the answer because it was asking a slightly different question. It may well be that at trial and after detailed submissions the Court finds otherwise, but for now the Court would not prevent the matter being pursued for this reason.
The Court further stated that the question should still be answered despite the argument that, once certain relevant parts of the 2016 Act come in to force, there will be fewer people affected by the answer. Nicklin J, said: “…it seems to me to be plain that this is a point of real importance and significance that potentially affects a large number of people.” (paragraph 31).
Yes, it does, and housing lawyers should certainly keep the case on their radars.
Notwithstanding the continued shrinking of the size of the ‘succession pool’ by legislative amendments, there are still surely a vast number of people that will be affected by the answer to this question.
The focus at trial is likely to be upon whether the difference in treatment is justified, which will include asking whether or not like is being compared with like. It is often this hurdle that discriminatory challenges invoking Article 14 ECHR fail to clear. Here, however, it is at least not immediately obvious to see why these two categories are treated differently.
We shall, of course, have to wait and see what the High Court says about it later in the year.
Mathew McDermott is a member of the Housing team at 42 Bedford Row and specialises in all aspects of housing law.
DISCLAIMER This bulletin is no more than a summary of the case, chosen selectively for the purposes of discussion only. It is not legal advice and should not be treated as such. It should not be relied upon in any respect. Recipients should always seek legal advice if proposing to take action following this commentary.