In Haringey LBC v Simawi (2018) EWHC 290 (QB) the Council refused to allow the Defendant to succeed to a secure tenancy on the basis of the “no second succession rule”. The Defendant contended that this rule, contained in Sections 87-88 of the Housing Act 1985 (“HA 1985”), is incompatible with Articles 8 and 14 of the ECHR. In summary, it was contended that the relevant sections of HA 1985 treat differently a tenant whose partner dies and a tenant whose marriage/civil partnership with his/her partner had broken-down. In the former case, the tenant is treated as a successor under Sections 87-88 of HA 1985. In the latter case, if the tenancy was assigned under a property assignment order made in matrimonial proceedings, then the person remaining in residence would become a tenant de novo. In consequence, the Defendant contended that a child who would otherwise satisfy the succession requirements of HA 1985 is treated less favourably if his/her parent was a sole tenant because of death than as a result of relationship breakdown.
The issue is not currently academic. It may become academic in the particular case. Nicklin J ordered that the issue should be resolved. The point is one of public importance. He said:-
“31. … Objectively judged, 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. The point is likely to arise in several succession cases under ss.87-88 and for many years to come. This is not some obscure legislative provision that affects only a handful of people each decade.
- Beyond the cases … in which the point is being taken, some indication that the point is one of general importance is the fact that it has been the subject of academic commentary. …”
Nicklin J rejected the argument that the point had been fully determined in R (Gangera) v Hounslow LBC (2003) HLR 68.