The One Succession Rule

November 4th, 2019 by James Goudie KC

The decision of Murray J in Haringey Council v Simawi (2018) EWHC 2733 (QB), Local Government Bulletin 23 October 2018, has now been upheld on 31 October 2019, by the Court of Appeal, (2019) EWCA Civ 1770. Lewison LJ, with whom Bean and Baker LJJ agreed, began his Judgment as follows:-

“1.        The issue on this appeal is whether the statutory provisions governing succession to secure tenancies unlawfully discriminate against Mr Simawi because of his status.”

Lewison LJ then, at paragraphs 5-10 inclusive, described secure tenancies, and, at paragraphs 11-16 inclusive, transfer of tenancy on divorce. He next set out the basic rule, in the consolidating Housing Act 1985, about succession. At paragraphs 21/22 he said:-

“21. The argument for Mr Simawi is not that the one succession rule is per se illegitimate. Rather, it is that the exception in section 88 (2) to the general rule that an assignee of a tenancy is a successor unlawfully discriminates against him. Put shortly, he says that if his mother had become the sole tenant as the result of an assignment of the tenancy pursuant to an order under section 24 of the Matrimonial Causes Act 1973, he would have been eligible to succeed to the tenancy. But since she became the sole tenant as the result of his father’s death, he is not eligible. …

22. Taking articles 8 and 14 together, Mr Simawi says that the difference in treatment between him (as a family member of the deceased survivor of joint tenants) and a comparator (as a family member of a divorced but now deceased former joint tenant) amounts to unlawful discrimination. …”

With regard to discrimination under ECHR Article 14 on the ground of “other status”, Lewison LJ said:-

“28.       It is clear that “other status” has some limits, otherwise the list of prohibited grounds in article 14 would be superfluous. Exactly where those limits are is more elusive. …”

“45.       … the judge’s conclusion that being the child of a widowed parent rather than a divorced parent is capable of amounting to an “other status” is a tenable conclusion. I proceed on that basis.

46.        So I pass to the next question: is the difference in treatment of which Mr Simawi complains discrimination on the ground of that “other status”? …

“48.       In my judgment … to the extent that Mr Simawi has been discriminated against, that discrimination has not been discrimination on the ground of his “other status”.

49.       The second way in which the case is put is that the succession rules amount to indirect discrimination against women. …”“54.       I do not consider that the succession rules amount to indirect discrimination upon which Mr Simawi can rely.

55. That is enough to dispose of the appeal. But in case I am wrong, I will go on to consider the question whether the alleged discrimination can be justified.56. Public sector housing is a scarce resource. Since 1980, when secure tenancies were first introduced (together with the right to buy) the proportion of households occupying public sector rented housing, and the number of dwellings available to let on that basis, has substantially declined. Housing authorities select tenants from long waiting lists on the basis of their housing needs. Where a person is entitled to succeed to a secure tenancy, they do so by virtue of their relationship to the deceased tenant rather than as a result of any particular housing need.

57. There are many cases in which the courts have stressed the importance of judicial restraint in the context of the allocation of public housing. …

58. The last of the four questions posed by Lady Hale in Stott was whether there was an objective justification for the difference in treatment. How does that test apply to the subject-matter of this appeal? …

59. … choices about welfare systems involve policy decisions on economic and social matters which are pre-eminently matters for national authorities. …”

“64.       … It seems to me to be plain that the test of “manifestly without reasonable foundation” is a more stringent test than whether a measure is a proportionate means of pursuing a legitimate aim. …

65.  That is the test which, in my judgment, we must apply in this case.

66. The normal function of this court on an appeal is to review the decision of the first instance judge: CPR Part 52.21. In cases that involve a Convention right, the approach of this court is no different; at all events where the challenge is based on proportionality: …

67. Does it make any difference where the challenge is to the decision of the first instance court that an impugned measure is not manifestly without reasonable foundation? In my judgment it does not. Both the question of proportionality and the question whether a measure is manifestly without reasonable foundation involve a judicial evaluative judgment. The appellate process ought therefore to be the same in each case.

68. The question for us, then, is whether the judge’s evaluation was wrong. In considering this question, it is not necessary to identify a “significant error of principle” in the judge’s reasoning. …

69. The judge concluded that the impugned measure was not manifestly without reasonable foundation. …

70. … Unless we are in a position to say that the judge was wrong, the evaluation of the evidence and the making of the evaluative judgment was a matter for him. That, too, means that the appeal must fail.”

Turning, however, to the underlying evidence, Lewison LJ said (emphasis added):-

“75.       It is not a legal requirement of justification that the reasons put forward in defence of a legislative provision must have been present to the mind of the policy maker at the time when it was introduced. It is open to a policy maker to advance a retrospective justification: … However, in the case of a retrospective justification the court will not have had the benefit of the considered decision of the policy maker. …”

“77.       … it is important that the succession rules strike an appropriate balance between those members of the deceased tenant’s family who consider the property their home, the interests of those on the waiting list who are identified as being in need of housing; and the interest of the local authority in making the best use of its stock. Obviously, the effect of permitting any succession at all is that the successor will acquire the secure tenancy, irrespective of housing need; and while the successor remains tenant that property cannot be allocated by the housing authority to someone in greater housing need. There is no doubt, in my judgment, that the one succession rule is amply justified, whatever the appropriate test.

78. If the one succession rule is to be effective, the legislation must prevent it from being circumvented or outflanked. On the death of a sole tenant, it is clear that succession to the deceased’s tenancy is a true succession, and thus exhausts the one succession rule. But in many cases where the dwelling subject to the tenancy is the matrimonial home, the tenancy will have been granted in joint names to both spouses or cohabitants. If becoming sole tenant by right of survivorship were not to count as a succession, there would be a serious disincentive to the grant of joint tenancies to married couples or cohabitants; and the survivor of joint tenants would have an unjustified advantage over the survivor of a sole tenant.

79. In general, a secure tenancy is incapable of assignment. An assignment to a qualified successor, however, is permitted under section 91 (3) (c). But to allow such an assignment to take place, without at the same time treating that assignment as using up the one permitted succession, would undermine the one succession rule; because without that the tenancy could be assigned from generation to generation in perpetuity.

80. What, then, of relationship breakdown? Given the importance of the one succession rule, and the need to avoid its circumvention, it is entirely understandable why the exception in section 88 (2) is narrowly circumscribed. It is clear that Parliament meant to draw a distinction between an assignment made by court order under section 24 of the Matrimonial Causes Act 1973 (which would not count as a succession) and an assignment made to a person qualified to succeed (which would). It was also clear from instructions to parliamentary counsel that this distinction was deliberate. The reasons … to justify the distinction were that:

  1. The exception ensures that the succession rules do not act as a disincentive to spouses, particularly those in unhappy or abusive relationships, from getting divorced. A spouse need not feel pressured to remain in a marriage where there is domestic abuse simply to avoid triggering a succession.
  2. By providing that the exception is confined to a court-ordered assignment the legislation ensures that there is a fact-sensitive discretionary decision by a court; and a considered judicial decision. Such a decision is qualitatively different from an automatic statutory succession.
  3. The intervention of the court is a safeguard against unjustified circumvention of the “one succession” rule.”

86. It may well be possible to improve the list of exceptions to the one succession rule in a way that would tilt the balance more in favour of family members, and against those who are on the housing list. From the perspective of the family members that would, no doubt, be a fairer outcome. But in this respect, as in many areas of life, the best should not be the enemy of the good. …

87. … Parliament was, in my judgment, entitled to decide that the one 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.”

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