Only having one succession for secure tenancies is not discrimination
A case law update on using discrimination to challenge limited number of successions for secure tenancies [England and Wales]
The Court of Appeal in Simawi v London Borough of Haringey [2019] EWCA Civ 1770 considered whether the statutory provisions governing succession for secure tenancies are unlawfully discriminatory.
What the case was about
In 1994, the London Borough of Haringey (“Haringey”) granted a joint, secure tenancy to Mr Simawi’s parents. When his father died, his mother became a sole tenant by the rules of survivorship, which counted as a first succession under the law then in force. When his mother died in 2013, Mr Simawi was living at the property and had been for at least 12 months preceding her death. As only 1 succession was allowed under statute, Mr Simawi was unable to succeed: see sections 87 and 88, Housing Act 1985 (note that succession rules changed following the Localism Act 2011, but this did not affect tenancies granted before those rules came into force, so did not apply to this case).
Mr Simawi argued that if his parents had been divorced, and the tenancy had been transferred to his mother by court order in the course of the divorce proceedings, that transfer would not have counted as a first succession: s.24 Matrimonial Causes Act 1973. In that situation, he would have been entitled to succeed to the tenancy on his mother’s death. He argued that as he cannot do so amounts to unlawful discrimination on the ground of his status, i.e. “a child who satisfies the succession requirements of Housing Act 1985 ss. 87 and 113 is treated less favourably if their parent was a sole tenant by death than if the parent was a sole tenant by relationship breakdown.” The High Court rejected this argument in the appeal below.
What the court decided
The Court of Appeal dismissed his appeal, holding that:
- Mr Simawi’s ‘other status’ could be considered. However, on the facts of the case, there was no discrimination under article 14, ECHR. It identified that there will be many situations in which the child of a divorcee will not be entitled to succeed to a secure tenancy. Also, if a secure tenancy had originally been granted to his mother, he would have been entitled to succeed, whether or not she had divorced his father. The contractual arrangements between Haringey and Mr Simawi’s parents were nothing to do with his status.
- There was no indirect discrimination. Statistics showed that women are 3 times more likely to be successors than men. Although that meant they were 3 times more likely to be affected by not being able to pass on their succession rights, it also meant they were 3 times more likely to benefit from being able to succeed in the first place. Also, Mr Simawi’s position would be the same whichever of his parents died first.
- Although the appeal could have been dismissed, the court went on to consider the test of ‘manifestly without reasonable foundation’, i.e. whether the High Court judge below had been wrong. Parliament was entitled to decide that the 1 succession rule was of prime importance; and that the only exception to it should be as narrowly drawn as possible in order to prevent serious hardship to those in unhappy or abusive relationships.
What it means for advisers
A number of succession cases were stayed in the County Court pending the outcome of this case. In light of this decision, those stays can be lifted and the cases proceed to be concluded.
Rebecca Chan is a Senior Housing Expert in the Expert Advice team at Citizens Advice.
