Michael Grant discusses the recent Court of Appeal decision of Aster Communities v Kerry Chapman (and Ors)  EWCA Civ 660, concerning the attachment of conditions to an award of dispensation from the consultation requirements under S.20 of the Landlord and Tenant Act 1985. Read more >
This case considered the extent to which Articles 8 and 14 of the ECHR can provide a defence to the children of secure tenants in ‘second succession’ cases.
Mr Simawi’s parents were granted a secure weekly periodic tenancy by the Claimant, the London Borough of Haringey, in August 1994. Upon his father’s death in June 2001, the tenancy vested in Mr Simawi’s mother by operation of the succession provisions contained in ss 87 to 89 Housing Act 1985. Mr Simawi was living with his mother at the time of her death in October 2013 and, by virtue of s.87 of the Housing Act 1985, was prevented from succeeding to his mother’s tenancy as there had already been a succession. His application for the grant of a new discretionary tenancy was refused by the Claimant, who subsequently served a notice to quit in December 2013 terminating the subsisting contractual tenancy. In June 2014 the Claimant instituted possession proceedings, seeking to evict Mr Simawi from the property. He sought to defend the claim, contending that the operation of the rule preventing him from succeeding to his mother’s tenancy was contrary to Art.8 ECHR (respect of his home) and 14 ECHR (non-discrimination). A possession order was granted by the county court in October 2014.
This case saw Mr Simawi seek declaratory relief from the High Court, challenging this ‘one succession rule’ and alleging that it was incompatible with the Human Rights Act 1998.
Following a tortuous procedural history, the claim for declaratory relief was determined on 19th October 2018. Mr Simawi’s argument rested on s.88 Housing Act 1985, which draws a distinction between a person who succeeds to a tenancy upon the death of the previous tenant, pursuant to s89 Housing Act 1985, and a person who is assigned a tenancy by court order upon divorce. The former is treated as a successor while the latter is not. This means that the child of the former cannot succeed to the tenancy upon the death of his or her parent, but the latter can (or could as law then stood — the relevant provisions of the Housing Act 1985 have subsequently been amended to limit succession rights to spouses and partners of tenants). Mr Simawi argued that that ss.87 and 88 Housing Act 1985 should be read in such a way to be compatible with the obligations set out in Article 8 and 14 ECHR, or alternatively that the court should declare that the way those sections operated in his case was incompatible with those obligations.
Article 8 ECHR protects people from interference with their home. Article 14 ECHR provides that the rights under the Convention shall be enjoyed without discrimination on any ground such as sex, race, religion, political opinion, nationality ‘or other relevant status’. It was common ground that Art.8 ECHR was engaged by the possession proceedings. Mr Simawi argued that the child of a divorced successor was in an analogous situation to the child of a widowed successor but was being treated differently by virtue of a personal characteristic which fulfilled the test of ‘relevant status’ for the purposes of ECHR Art.14. Mr Simawi argued that the difference in treatment could not be objectively justified.
Murray J proceeded to consider the matter on the assumption that that the child of a divorced parent was in an analogous position to the child of a widowed parent. However, he determined that there was no discrimination because a second succession was not prevented due to any personal characteristic of the Defendant but because of the legal mechanism by which his mother had succeeded to the tenancy. The court went on to consider whether in any event there was any objective justification for the difference in treatment. The court noted that contracting states have a large margin of appreciation when it comes to matters of economic and social strategy and that the ECtHR will generally respect a state’s choices in these areas unless they are manifestly without reasonable foundation. The court noted that the objective of the rule was the fair allocation of social housing and could not be said to be without reasonable foundation.
He dismissed the claim. Whether or not Mr Simawi will seek permission to appeal remains to be seen.
Niamh O’Brien is a member of the Housing team at 42 Bedford Row and specialises in all aspects of housing law.