The One Succession Rule

October 23rd, 2018 by James Goudie KC

In Haringey Council v Simawi (2018) EWHC 2733 (QB) the Defendant sought declaratory relief in relation to the “one succession rule”, set out in Sections 87-88 of the Housing Act 1985 (“The 1985 Act”). He asked that the Court either:

i) exercise its power under Section 3 of the Human Rights Act 1998 (“the 1998 Act”) to “read down” or interpret Sections 87-88 of the 1985 Act in the manner for which he contends;

ii) declare under Section 4 of the 1998 Act that Sections 87-88 of the 1985 Act are incompatible with the rights and fundamental freedoms (“the Convention Rights”) in Article 14 in conjunction with Article 8 of the ECHR as set out in Schedule 1 to the 1998 Act.

This matter arose out of a claim brought by the Council for possession of a two-bedroom maisonette (“the Property”). The original claim for possession was issued in the County Court. The Defendant defended the claim on two grounds, one of which was that the one succession rule is incompatible with Articles 14 and 8 of the Convention (“Ground 1”).

Section 87 of the 1985 Act identifies persons qualified to succeed the tenant under a secure tenancy. Section 88 relates to cases where the tenant is himself/herself a successor.

  1. Section 87 identified the persons who were qualified to succeed a secure tenant pursuant to Section 89. It provided that a person was qualified to succeed a secure tenant if he occupied the dwelling-house as his only or principal home at the time of the tenant’s death and (a) he was the tenant’s spouse or civil partner; or (b) he was another member of the tenant’s family (as defined in Section 113) and had resided with the tenant throughout the period of 12 months ending with the tenant’s death, unless, in either case, the tenant was himself a successor, as defined in Section 88.
  2. Section 88 defined the circumstances in which the tenant was himself a successor. It provided that a person in whom a secure tenancy had vested on the death of a previous tenant was himself a successor, but that a person to whom a secure tenancy had been assigned following a breakdown in marriage was not (unless the other party to the marriage was a successor).

Section 160 of the Localism Act 2011 (‘LA 2011’) inserted a new Section 86A into the 1985 Act. The effect of Section 86A is to limit the statutory right of succession to spouses and civil partners. Section 86A(3) continues to limit that right to one statutory succession. Other family members, such as children, no longer enjoy a right of succession. However, Section 86A applies only to England and only in relation to secure tenancies granted on or after 1 April 2012 (“new STs”). Secure tenancies granted before 1 April 2012 (“old STs”) remain governed by Section 87. The LA 2011 did not amend Section 88 of the 1985 Act.

When brought into force, the Housing and Planning Act 2016 (“HPA 2016”) will introduce further amendments to the HA 1985. So far as material, Schedule 8 renumbers Section 86A as Section 86G and inserts a new subsection (8). The effect of Section 86G(8), once it comes into force, will be to align the succession criteria for old and new STs. Thus, the removal of the statutory right of succession from other family members such as children will apply to old STs as well as new STs. However, this change will apply only in cases where the tenant dies after the amendment comes into force.

A commencement date for Schedule 8 of HA 2016 has not yet been appointed.

Section 86A of the 1985 Act is of no application in the present case, the tenancy in question having commenced on 8 August 1994 and having been succeeded to by Mr Simawi’s mother on 11 June 2001. The HPA 2016 equally did not alter the position in the present case, since the amendments in Schedule 8 to that Act will apply only to cases in which the secure tenant dies after the amendments come into force.

By virtue of his mother having become a successor, the “one succession rule” applies, thus preventing a further statutory succession in his favour.

Mr Simawi did not allege that the “one succession rule” is in itself incompatible with Article 14 of the ECHR, read with Article 8. He made the more limited argument that the manner in which the relevant provisions operate constitutes unlawful discrimination. In the case of R (Gangera) v Hounslow London Borough Council  [2003] EWHC 794 (Admin), [2003] HLR 68, which also concerned a challenge to Sections 87 and 88 of the Housing Act 1985 in reliance on Articles 14 and 8 of the ECHR, Moses J (as he then was) noted that in formulating the rules of succession in the 1985 Act:-

“Parliament had to strike a balance between security of tenure and the wider need for systemic allocation of the local authority’s housing resources in circumstances where those housing resources are not unlimited. The striking of such a balance is pre-eminently a matter of policy for the legislature. The court should respect the legislative judgment as to what is in the general interest …”

The possession claim came within the ambit of Article 8 of the ECHR. As regards Article 14, Murray J adopted the approach laid down by the Supreme Court in McLaughlin that Article 14:-

“[a]s is now well known … raises four questions, although these are not rigidly compartmentalised:

(1)        Do the circumstances ‘fall within the ambit’ of one or more of the Convention rights?

(2)        Has there been a difference of treatment between two persons who are in an analogous situation?

(3)        Is that difference of treatment on the ground of one of the characteristics listed or ‘other status’?

(4)        Is there an objective justification for that difference in treat-ment?”

The issues for Murray J to resolve, were (in addition, potentially, to the remedies sought by the Council):-

  1. the remaining questions (2), (3) and (4) above, as they apply in this case, looking at them holistically; and
  2. Whether Section 88 of the 1985 Act is indirectly discriminatory on gender grounds.
  3. As regards difference in treatment between two persons in an analogous situation, Murray J said, at paragraph 32:-

“My view is that the position of a qualifying family member following the death of a widowed tenant under a secure tenancy is arguably analogous to the position of a qualifying family member following the death of a divorced tenant. There is, of course, a difference in the position of the deceased, which arises by operation of sections 87 to 88, but that is why the positions of the qualifying family members are merely analogous and not, in essence, the same. That difference results in the difference of treatment that is at the heart of Mr Simawi’s case. It is safer, therefore, to proceed, albeit tentatively, on the basis that the positions are analogous, and to consider questions 3 and 4 of Baroness Hale’s four-stage test in McLaughlin.

As regards difference of treatment on the ground of relevant status, Murray J said:-

37        The proscribed grounds in Article 14 cannot, of course, be unlimited, but a liberal or generous approach to determining status for purposes of discerning the scope of Article 14 is appropriate.

  1. It seems to me that whether a person is widowed or divorced is capable of being a personal characteristic or status for purposes of Article 14. I accept that whether a person is a child of someone who is widowed or a child of someone who is divorced is more “peripheral or debateable”, in the words of Lord Walker in the RJM v SSWP case at [5], as a personal characteristic for article 14 purposes, but in my view it is capable of being so in appropriate circumstances. I think that puts Mr Simawi’s case, on this aspect of the four-stage analysis, at its highest.”

“41.      In Gangera, as in this case, Mr Gangera was the child of joint secure tenants. … Mr Gangera’s chosen “comparators”, however, were different to the chosen comparator in this case. …

  1. Mr Justice Moses (as he then was) refused the claim on the basis that neither of Mr Gangera’s chosen comparators were in an analogous situation to Mr Gangera’s. At [26] in that case, Moses J said:

[H]owever widely ‘status’ [under Article 14 of the Convention] may be interpreted it is clear to me that there has been no discrimination on the grounds of status whatsoever. The reason why the claimant is not entitled to succeed to his mother’s tenancy does not depend upon his status at all. It is because his mother had become the sole tenant and therefore, by virtue of the operation of Section 88(1)(b) of the 1985 Act, she was herself a successor. The difference in treatment follows from the fact of a previous succession not because of the status of the claimant. His chosen comparisons are not true comparisons at all. In his two examples the comparators were succeeding to a secure tenant who was not himself a successor within the meaning of Section 88(1).”

43        This reasoning would appear to provide an answer also to Mr Simawi’s claim. Like the comparators in Gangera, Mr Simawi’s comparator, the child of a divorced tenant, succeeds to a secure tenant who was not herself a successor within the meaning of Section 88. … it is perhaps correct to conclude that Gangera does not provide a “complete” answer to the claim, although, in my view it comes close to doing so.

  1. Mr Lask submitted that it is not the status of a person (C) as the child of a widow or the child of a divorcee that determines whether he can succeed as a secure tenant. It is the legal mechanism by which the person from whom he would succeed (P) acquired the secure tenancy that determines whether the one succession rule is engaged. If P acquired the secure tenancy upon the death of a joint secure tenant, then P is a successor under Section 88(1) and C cannot succeed to the secure tenancy. If P acquired the secure tenancy upon a judicial assignment under one of the statutory provisions referred to in section 88(2), then P is not a successor and C can succeed to the secure tenancy. Mr Simawi’s contention that the one succession rule is disengaged in relation to his chosen comparator, namely, where C is the child of a divorced parent, by virtue of C’s status is artificial. I am inclined to agree.
  2. Arguably, this closes any remaining gap between this case and Gangera, and Mr Simawi’s claim must fail. I go on, however, to consider whether there is an objective justification for the difference of treatment complained of by Mr Simawi arising as a result of Section 88(2), given the need to approach the four-stage test holistically.”

As regards objective justification for difference of treatment, Murray J adopted the approach in Carson v UK, and said:-

“47.      As already noted, sections 87 and 88 of the Housing Act 1985 are concerned with a local authority’s ability to manage and distribute its social housing stock fairly. This, in my view clearly comes within the scope of “general measures of economic or social strategy” for which a wide margin of appreciation is usually allowed to the state. …

  1. Accordingly, the proper test to apply in considering the compatibility of the scheme for succession set out in sections 87 to 88 of the Housing Act 1985, and specifically the differential treatment of succession via death versus obtaining a sole tenancy via judicial assignment in the context of divorce, is whether it is “manifestly without reasonable foundation” (“the MWRF test”).
  2. This is not a case involving a suspect ground, such as race or gender, which would require a much more rigorous standard of review. The status or ground relied on by Mr Simawi is, if anything, towards the outer edge of the concentric circles referred to by Lord Walker in RJM…. The MWRF test is therefore the appropriate test. It is the test that was applied by Moses J in Gangera.
  3. The MWRF test is a “stringent” test, requiring a wide margin of discretion to be accorded to the decision-maker: …
  4. … The primary objective of the statutory framework governing how such tenancies are granted and succeeded to is to ensure that social housing is distributed fairly.
  5. Against that background, the one succession rule is unimpeachable. I have already noted that Mr Simawi does not challenge the one succession rule per se. So the question resolves to whether Section 88(2), which, when considered in relation to Section 88(1), creates the differential treatment of which Mr Simawi complains, is itself manifestly without reasonable foundation.”

Murray J found on the evidence that there was a reasonable foundation. He said:-

“58.      … Dealing … with the absence of evidence before me of a specific contemporaneous Parliamentary justification for Section 88(2) of the Housing Act 1985, or its predecessor in Section 31 of the Housing Act 1980, that absence is not, in my view, fatal. To require that in this context sets too high a standard. Section 88(2) is a provision of primary legislation that clearly and, quite obviously, deliberately creates an exception to the rule under Section 88(1)(d) that a person who becomes a tenant on the tenancy being assigned to him is a successor. The presumption must be that it was considered by Parliament, particularly where it is clear from the terms of the provision itself that it is predominantly motivated by policy considerations relating to matrimonial proceedings rather than housing policy.

  1. The Department’s justification for the provision, while admittedly ex post facto, strengthens the presumption that Section 88(2) has a rational and legitimate purpose and is therefore neither arbitrary nor capricious. In other words, the provision cannot be said to be manifestly without reasonable foundation. …”

“63.      Since Section 88(2)        was objectively justified, there was no unlawful discrimination engaging Mr Simawi’s Article 14 and Article 8 rights under the ECHR. For essentially the same reasons, there was no indirect unlawful discrimination on the basis of gender….Murray J concluded that there was no basis on which it would be appropriate for him to grant the relief sought by Mr Simawi based on Ground 1 of his Defence, either under Section 3 or under Section 4 of the HRA 1998. His application for that relief was dismissed.

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