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Home > Case updates > Green light to discrimination challenge to statutory succession rules

Green light to discrimination challenge to statutory succession rules

27 March 2018, by Connor Johnston

Connor Johnston

Haringey London Borough Council v Simawi [2018] EWHC 290 (QB), 19 February 2018

S’s father was granted a secure weekly periodic tenancy by the Claimant, the London Borough of Haringey, in August 1994. Upon his death in June 2001, the tenancy vested in his wife – S’s mother – by operation of the succession provisions contained in ss87-89 Housing Act 1985 (as they were, prior to amendment by the Localism Act 2011). Upon her death in October 2013, by the terms of ss87-89, the tenancy ceased to be secure: the Housing Act 1985 does not allow ‘second successions’.

Haringey subsequently served a notice to quit in December 2013 terminating the subsisting non-secure contractual tenancy and, in June 2014, instituted possession proceedings, seeking to evict S from the property. S sought to defend the claim, contending that the rule preventing a second succession was discriminatory, contrary to Art.8 and 14 ECHR, and that ss87 and 88 Housing Act 1985 were incompatible with those obligations.

The argument rested on s88 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, pursuant to s24 Matrimonial Causes Act or s17(1) Matrimonial and Family Causes Act 1984, upon the breakdown of a relationship. 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. Putting the former in a less favourable position. To treat the child of a person who has acquired a tenancy following relationship breakdown more favourably than the child of a person who has acquired a tenancy upon the death of his or her spouse of civil partner lacked, according to S, any sensible justification.

The possession claim was transferred from the County Court to the High Court and came before Nicklin J to decide a preliminary issue: namely whether the claim should be allowed to proceed in the event that the Claimant offered S a new secure tenancy, rendering the issues academic.

The judge observed that the court has a jurisdiction to determine academic disputes involving questions of public law, where there is a good reason in the public interest for doing so. To justify doing do so there must be a large number of similar cases anticipated, and the decision must not be fact-sensitive. See R v Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450, 456-457 Lord Slynn. In addition, the other party must agree to the case proceeding, or be indemnified on costs and not otherwise inappropriately prejudiced. And the court must be satisfied that both sides of the argument will be fully and properly ventilated. See Hutcheson v Popdog Ltd (Practice Note) [2012] 1 WLR 782 per Lord Neuberger at [15].

The judge held that the claim should be allowed to proceed, even if it were to become academic for those involved. The issue in the case was of general importance, potentially affecting a large number of people for many years to come. Further, the issue had not, contrary to the submission of the Interested Party, been decided in the similar case of R (Gangera) v Hounslow LBC [2003] HLR 68.  The decision in Gangera would certainly have a bearing on the ultimate outcome in the case, but it involved a different comparator and was not determinative. Although the issue will become less important when provisions further restrict succession rights contained in the Housing and Planning Act 2016 come into force, there is no indication when this will happen and the issue will still be of relevance to many tenancies. Finally, the fact that the Claimant did not agree to the case being pursued if it becomes academic and would not be indemnified was not a decisive factor. That would amount to a power of veto over the court’s ability to decide issues of public interest. The costs of pursuing the case to its conclusion were not so significant as to result in ‘inappropriate prejudice’. As such, the claim should continue even if it were to become academic. Directions had already been made for trial which is to take place on 2-3 October 2018.

The judgment is available here: Haringey London Borough Council v Simawi [2018] EWHC 290 (QB)

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