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England and Wales High Court (Queen's Bench Division) Decisions
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Cite as:  EWHC 290 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Mayor and Burgesses of the
London Borough of Haringey
- and –
|The Secretary of State for Communities and Local Government
Toby Vanhegan (instructed by Burke Niazi Solicitors) for the Defendant
Ben Lask (instructed by the Treasury Solicitor) for the Interested Party
Hearing date: 8 February 2018
Crown Copyright ©
The Honourable Mr Justice Nicklin:
s.87 Persons qualified to succeed tenant
A person is qualified to succeed the tenant under a secure tenancy if he occupies the dwelling house as his only or principal home at the time of the tenant's death and either —
(a) he is the tenant's spouse; or
(b) he is another member of the tenant's family and has 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 s.88.
s.88 Cases where the tenant is a successor
(1) The tenant is himself a successor if —
(a) the tenancy vested in him by virtue of s.89 (succession to a periodic tenancy) or
(b) he was a joint tenant and has become the sole tenant, or
(c) the tenancy arose by virtue of s.86 (periodic tenancy arising on ending of terms certain) and the first tenancy there mentioned was granted to another person or jointly to him or another person, or
(d) he became a tenant on the tenancy being assigned to him (but subject to subsections (2) and (3), or
(e) he became the tenant on the tenancy being vested in him on the death of the previous tenant, or
(f) the tenancy was previously an introductory tenancy and he was a successor to the introductory tenancy".
(2) A tenant to whom the tenancy was assigned in pursuance of an order under section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings) or section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c) is a successor only if the other party to the marriage was a successor.
i) Section 87 identified the persons who were qualified to succeed a secure tenant pursuant to s.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 s.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 s.88.
ii) 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 (s.88(1)), 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) (s.88(2)).
21. The Defendant asserts that:
(i) whether a person becomes a sole tenant through death or assignment after relationship breakdown is a status for the purposes of Art 14 of Schedule 1 of the Human Rights Act 1998; and
(ii) … the potential successor children of such persons are in an 'analogous position' with each other for the purposes of Art 14 of Schedule 1 of the Human Rights Act 1998; and
(iii) there is no sensible justification for the less favourable treatment accorded to successors by death and their putative successor children; and therefore
(iv) the 'no second succession rule' is incompatible with Art 14 and Art 8 of Schedule 1 of the Human Rights Act 1998.
21a. Further, the distinction drawn in s.88 is indirectly discriminatory on gender grounds. The distinction is prima facie gender neutral. However, the distinction adversely affects women and their putative successors relative to men. This is because women as a class live longer than men, and so are statistically more likely to become sole tenants as a result of widowhood rather than divorce. Sole tenancy arising consequent upon divorce is gender neutral – as obviously both parties to the relationship are alive. However, because of women's greater longevity, the surviving sole tenant consequent upon widowhood is more likely to be a woman than a man.
22. The Defendant further avers that it is possible for the court – in accordance with the Human Rights Act 1998 s.3 – to lend the Housing Act 1988 (sic) ss.87-88 a meaning which is compatible with Art 14 of Sch 1 of the Human Rights Act 1998 by, for example, reading the italicised words below into s.88(e):
(e) he became the tenant on the tenancy being vested in him on the death of the previous tenant unless he/she was the spouse of the previous tenant and the previous tenant was not him/herself a successor to the tenancy or…
23. If the court accepts that the above cited provisions of the Housing Act 1985 create a legal position which is incompatible with Art 14, but that it is not possible per the Human Rights Act 1998 s.3 to construe these provisions in a Convention-Rights compatible manner, then this matter should stand adjourned so that the Defendant may seek a declaration of incompatibility in the High Court per the Human Rights Act 1998 s.4.
The resolution of 'academic' issues: the law
"… in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury -v- Millington (and the reference to the latter in rule 42 of the Practice Directions applicable to Civil Appeals (January 1996) of your Lordships' House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case.
The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.
I do not consider that this is such a case. In the first place, although a question of statutory construction does arise, the facts are by no means straightforward and in other cases the problem of when a determination is made may depend on the precise factual context of each case. In this very case, the first issue is expressed to arise "On the facts of this case;" the second issue concerns the question whether the Secretary of State had any discretion to record and rescind his decision and whether the discretion was exercised rationally and fairly in the instant case.
In the second place, Mr. Pannick, on the basis of instructions from both the Home Office and the Department of Health and Social Security, told us that only in a few cases has this question arisen. In R -v- Secretary of State for the Home Department, Ex parte Karaoui, The Times, 27 March 1997, the issue was whether there was a record; the determination was quashed because there was no record. In R -v- Secretary of State for the Home Department, Ex parte Bawa (unreported), 27 October 1997 the claim was accepted by the Home Office after the trial judge's decision. In two other cases, applications are being made for judicial review, but leave has not yet been given. The unusual facts of the present case do not seem to provide a good basis for the matter to be raised as a general principle, the particular lis having gone.
This was not brought as a test case and in my view these factors outweigh any possible advantages for the legal aid board in dealing with this case which proceeded so far."
 … academic issues cannot and should not be determined by courts unless there are exceptional circumstances such as where two conditions are satisfied in the type of application now before the court. The first condition is in the words of Lord Slynn in Salem (supra) that "a large number of similar cases exist or anticipated" or at least other similar cases exist or are anticipated and the second condition is that the decision in the academic case will not be fact-sensitive. If the courts entertained academic disputes in the type of application now before the court but which did not satisfy each of these two conditions, the consequence would be a regrettable waste of valuable court time and the incurring by one or more parties of unnecessary costs.
 These points are particularly potent at the present time where the Administrative Court is completely overrun with immigration, asylum and other cases and where it would be contrary to the overriding objectives of the CPR for an academic case to be pursued. After all one of those overriding objectives is "dealing with a case justly [which] includes, so far as is practicable … (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases" (CPR Part 1.1) It is noteworthy that there have been a number of cases where the court has considered it appropriate to hear an academic issue but those cases, which often concerned statutory construction or the impact of the European Convention on Human Rights on English statutes, satisfied the two tests which I have set out in paragraph 36 above (see generally the examples given in R (on the application of B) v Dr SS, Dr AC and the Secretary of State for the Department of Health  EWHC 86 (Admin) ).
 In a case involving a public authority and raising a question of public law, the court has a discretion to hear the appeal, even if by the time it is heard, there is no longer an issue to be decided which will directly affect the rights and obligations of the parties as between themselves: see R -v- Secretary of State for the Home Department, Ex p Salem  1 AC 450, 456, per Lord Slynn of Hadley. However, as Lord Slynn went on to emphasise, at p.457, that discretion was to be exercised with caution:
"and appeals which are academic … should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."
 Just how narrow this discretion is, was underlined in this court in Hutcheson -v- Popdog Ltd (News Group Newspapers Ltd, third party) (Practice Note)  1 WLR 782. Lord Neuberger of Abbotsbury MR said, at para 12, that "the mere fact" that a projected appeal may raise a point or points of significance did not mean that "it should be allowed to proceed where are no longer real issues in the proceedings as between the parties." Lord Neuberger formulated the following propositions, at para 15:
"Both the cases and general principle seem to suggest that, save in exceptional circumstances, three requirements have to be satisfied before an appeal, which is academic as between the parties, may (and I mean 'may') be allowed to proceed: (i) the court is satisfied that the appeal would raise a point of some general importance; (ii) the respondent to the appeal agrees to it proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced; (iii) the court is satisfied that both sides of the argument will be fully and properly ventilated."
Even taking into account that Hutcheson did not involve a public authority or a question of public law, the caution needed before exercising the discretion to proceed in a case which has become academic is readily apparent…
 Pulling the threads together, I do not, respectfully, read these authorities as suggesting any inflexible rule as regards proceeding with an appeal which has become academic between the parties. Instead, in such a case, they point to the court having a narrow discretion to proceed, to be exercised with caution—even when a point of public law of some general importance is involved...
 …There are sound reasons why courts and tribunals at all levels generally confine themselves to deciding what is necessary for the adjudication of the actual disputes between the parties. Deciding no more than is necessary may be described as an unimaginative, unadventurous, inactive, conservative or restrictive approach to the judicial function, but the lessons of practical experience are that unnecessary opinions and findings of courts are fraught with danger.
 Specialist tribunals seem to be more prone than ordinary courts to yield to the temptation of generous general advice and guidance. The wish to be helpful to users is understandable. It may even be commendable. But bodies established to adjudicate on disputes are not in the business of giving advisory opinions to litigants or potential litigants. They should take care not to be, or to feel, pressured by the parties or by interveners or by critics to do things which they are not intended, qualified or equipped to do. In general, more harm than good is likely to be done by deciding more than is necessary for the adjudication of the actual dispute.
 One of the dangers of unnecessary rulings is that, with only the assistance of the parties and without the benefit of wider consultation on relevant aspects of the public interest, the court's opinions, though meant to be helpful, may turn out to be damaging in practice and wrong in law. The court may be unaware of all the available arguments or ignorant of the practical implications of what it says. Those who rely on its advisory opinions when applying the law in practice may be misled or confused. A judgment aimed at giving authoritative advice and guidance may be misused by selective citation in different and unforeseen disputes and circumstances.
 It is also the case that the Court of Appeal is faced with a dilemma when presented with unnecessarily wide ranging judgments at first instance or, as in this case, at a lower appellate level. If, on the one hand, the Court of Appeal accepts an appeal against unnecessary rulings on points of law, it risks making the situation even worse by itself expressing unnecessary opinions, apparently impressed with greater authority. If, on the other hand, it takes a purist stance and refuses to accept the appeal at all, those who have reasonable grounds to be aggrieved by parts of the judgment of the lower court may have to wait a very long time in the happenstance of litigation before they have an opportunity to challenge those parts of the judgment. Indeed, they may never have the chance to get what has been said judicially examined and, if necessary, corrected.
Point of general importance
i) Section 86A removes the statutory right of succession from family members other than spouses and civil partners. Going forward, therefore, the difference in treatment complained of by the Defendant in this case has been eliminated. The family member of a deceased secure tenant to whom the tenancy was assigned because of a breakdown in marriage no longer has a statutory right of succession. He is therefore in the same position as the family member of a deceased secure tenant who succeeded to the tenancy upon the previous tenant's death. ?
ii) By removing the statutory right of succession from the family members of divorced tenants, s.86A equalises the position of those family members and the position of family members of widowed tenants. It thereby eliminates the alleged discrimination on which the Defendant's Art. 14 case rests. ?
iii) Section 86A applies at present to new STs. Thus, whilst it does not apply to this Defendant or his comparator, the potential impact of the difference in treatment arising from the previous version of s.87 is already diminishing. Once the HPA 2016 comes into force, s.86A (to be renumbered s.86G) will apply to old STs as well. At that point, the difference in treatment will disappear altogether.?
iv) Thus, because of the amendments to the HA 1985, the cohort of cases that could be affected by any ruling on Ground 1 is already shrinking. Once HPA 2016 comes into force, it will shrink even further and ultimately disappear. It follows that, whilst the amendments do not affect this Defendant's case, he submits they reinforce the Interested Party's submission that there is no wider public interest in hearing Ground 1 should it become academic.
Agreement of the parties, costs and prejudice
i) This claim has, after many years, reached a stage where the point is practically ready to be determined. The only stage, before legal argument, is for the Interested Party to file such evidence as he wants on the issue of objective justification for the difference of treatment under ss.87-88.
ii) When looking at the costs, the Court should have regard to the likely overall costs saving that will occur because of the authoritative determination of the point. He submits that it is wasteful of costs – and not in accordance with the overriding objective – for this case to end at the 11th hour. Not only are the costs that have been incurred in this case not going to bear the fruit of a determination on this legal point, but if the point is going to have to be pursued in another case (as inevitably he says that it will), then other litigants will have to expend the costs of getting their case to the point that this case has reached. He characterised it as a game of 'snakes and ladders' where a player, who is two steps away from home, lands on a snake and is sent all the way back to the start.
The argument will be properly ventilated
"Sections 87 and 88 of the Housing Act 1985 treat a person who becomes a tenant on the death of her/his spouse or civil partner as a successor to the tenancy. This consequence applies if the partners were joint tenants or if the deceased partner was the sole tenant. However, per Housing Act 1985 s.88(2), a person who becomes the tenant following an assignment by the court consequent on the breakdown of a marriage/civil partnership/cohabitation relationship becomes a tenant de novo unless the other tenant was him/herself a successor.
A person (W1) whose spouse/partner "leaves" her/him because of death is therefore treated less favourably within the ambit of art.8 for succession purposes under the scheme of the Housing Act 1985 than a person (W2) whose spouse/partner "leaves" her/him because of relationship breakdown. The less favourable treatment to W1 arises because W1's home is no longer a familial asset which will pass as a matter of law on W1's death either to a qualifying family member or a new spouse. Relatedly, while W2 could assign her de novo tenancy to a qualified potential successor, W1 cannot do so.16
Less (indeed much less) favourable treatment (within the ambit both of art.8 and art.1 of the First Protocol) also extends consequentially to a child (or new spouse/partner/civil partner) who satisfies the succession requirements of the Housing Act 1985 s.87 (and for non-spouses s.113) if her/his parent/new partner was a sole tenant by death than if the parent/new partner was a sole tenant by relationship breakdown. In the latter case, the child/new partner is herself a secure tenant. While she cannot assign the tenancy and cannot pass it by succession on her death, she enjoys the legal right to significant security of tenure, the right to buy, and a rent set at significantly less than those prevailing in the private sector. In the former case, the child new partner has no legal rights at all in her home, save the dubious benefit of being protected against 'disproportionate' eviction."
 It is important to observe that … the claimant does not contend that the provisions in relation to succession to a secure tenancy themselves infringe Art 8. It is not surprising that he eschews any such argument. The policy underlying the rules of succession contained within the 1985 Act, in the context of the legislative provisions relating to the management and allocation of local authority housing is clear… Every secure tenant, whether sole or joint, is limited to one assignment or other transmission of the secure tenancy. The rule limiting succession to one transmission applies to all secure tenants equally…"
The Judge explained that, as a matter of policy, Parliament was entitled to limit succession of a secure tenancy to one assignment. He continued:
 … There is no basis for contending that the statutory scheme, which seeks to allocate public resources for the provision of local authority housing to those most in need, amounts to a disproportionate interference with a person's right to respect for his home. No such contention is made in the instant case. But the claimant advances the more limited argument that the provision constitutes unlawful discrimination. The proper approach to this issue was identified by Brooke LJ in Wandsworth London Borough Council -v- Michalak  WLR 617 at .
 The first question is whether the facts fall within the ambit of one or more of the substantive convention rights. There is no dispute that they do since Art.8 is engaged. The order for possession threatens to infringe Mr Gangera's rights enshrined in Art.8(1).
 The second question is whether there was a difference in treatment as respects the rights enshrined in Art.8 between the complainant on the one hand and other persons put forward for comparison on the other. The claimant contends that his position should be contrasted with two comparators. Firstly, if his mother had been the sole tenant from the commencement of the tenancy he would have been entitled to succeed. Secondly, where there is no spouse, and a secure tenant was not formerly a joint tenant, the tenant's nephew by marriage could succeed to the secure tenancy so long as he fulfilled the requirement of residing with the tenant for a period of twelve months ending with the tenant's death. Again, there is no dispute but that in relation to the chosen comparators there is a difference in treatment.
 The third question is whether the chosen comparators are in an analogous situation to the complainant's position. In my judgment they are not. In the first example the claimant's father was never a tenant. In the second there was no spouse to whom the secure tenancy may be transmitted. The answer to the claimant's submissions is that the legislation has not discriminated against the claimant on the basis of his status at all. In Kjeldsen -v- Denmark (1976) 1 EHRR 711 the European Court of Human Rights said that Art.14 prohibits [discriminatory] treatment having as its basis or reason a personal characteristic by which persons or groups of persons are distinguishable from each other (see para. ). Since that case, as Brooke LJ pointed out at  in Wandsworth London Borough Council -v- Michalak, the Court has not limited the concept of discrimination to personal characteristics. The Court has found discrimination between owners of non-residential as opposed to residential buildings, owners of Pit Bull terriers as opposed to owners of other breeds of dogs and between small as opposed to large landowners. But however widely "status" 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 s.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 s.88(1).
i) Although the statutory regime applies to all secure tenancies, the likelihood is that the overwhelming majority of cases in which this point arises will be in relation to secure tenancies of local authority housing.
ii) The tenants of these properties (and their families) are unlikely to be wealthy; on the contrary they are likely to be poor and unable to afford legal representation. Many will represent themselves and are unlikely to have the knowledge of, or ability to argue, what is a complicated point. The typical possession list in a County Court hardly provides an opportunity for extended consideration of the merits of each defendant's case. Under CPR Part 55, the Court may dispose of the case on a summary basis, at the first hearing, unless it appears that the claim can be "genuinely disputed on a ground which appears to be substantial" (CPR Part 55.8(2)).
iii) Some, like Mr Simawi, may qualify for public funding, but as is well known the availability of public funding is very limited. Those who might qualify based on the paucity of their means will still have to demonstrate prospects of success that are sufficiently favourable to be granted public funding. Applicants may well face the submission that Gangera is the complete answer and that their prospects of success are not sufficient to justify public funding.
iv) Other litigants may reach agreements with their housing authority on the basis that their personal circumstances are such that the council, in exercise of its discretion, offers them a tenancy. The tenant may simply be glad to have a tenancy and be completely unaware (and without the benefit of advice) that the tenancy that s/he is now being offered offers substantially less protection than the secure tenancy that s/he was – arguably – entitled to succeed.
These factors are likely to suppress the number of cases in which the point actually presents for determination by a court. In short, the absence of visible ranks of defendants for whom this point is important is not a reliable indicator of the true number of people that stands to be affected by the decision in this case.
"… a party who has notice of an interim injunction is at risk of being in contempt of court if he does something which effectively flouts or undermines the injunction: see, for instance, Attorney General -v- Times Newspapers Ltd  1 AC 191, 223–224 and see also Attorney General -v- Punch Ltd  1 AC 1046, 1066. This principle, sometimes known as "the Spycatcher principle" (Attorney General -v- Newspaper Publishing plc  Ch 333, 375 and 380), is well-established. However, Gray J decided in Jockey Club -v- Buffham  QB 462, paras 23–27 that, if and when a final injunction is granted in favour of a claimant, any interim injunction is discharged and replaced by the final injunction, and that a third party, even one who has notice of the final injunction, is not at risk of being in contempt of court if he acts inconsistently with the injunction."
i) The relatively small scale of the costs that are likely to be incurred in bringing this case to its conclusion, particularly measured against the costs that have been incurred in getting it to the stage it has reached. I recognise that the Claimant is a local authority, whose resources are already likely to be stretched. However, taking a long-term view, the resolution of this issue, determinatively, is likely ultimately to reduce the costs it (and other local authorities) will expend on litigation if the issue remains unclear and the subject of disputed litigation.
ii) Unlike the objecting party in Hutcheson, who had no interest in the issue being determined, the Claimant has a continuing and real interest in the issue being resolved. It is to take too narrow a view to say that it has no interest in resolving the issue in Mr Simawi's case.
a) ensuring that the parties are on an equal footing;
b) saving expense;
c) dealing with the case in ways which are proportionate:
i) to the amount of money involved;
ii) to the importance of the case;
iii) to the complexity of the issues; and
iv) to the financial position of each party;
d) ensuring that it is dealt with expeditiously and fairly; and
e) allotting to it an appropriate share of the court's resources, which taking into account the need to allot resources to other cases.
Note 1 And to treat a person who was living with the tenant as if they were the tenant’s spouse or civil partner as the spouse or civil partner as the case may be: s.86A(5). [Back] Note 2 Section 87 was amended by s.160 LA to apply to Wales only. By s.160(6), this amendment does not apply in relation to secure tenancies that were granted before 1 April 2012. The position, therefore, is that (a) for secure tenancies granted before 1 April 2012, s.87 applies in its un-amended form in both England and Wales; (b) for secure tenancies granted after 1 April 2012 (i) s.86A applies in England; and (ii) s.87 in its amended form applies in Wales. The law in Wales will change once the Renting Homes (Wales) Act 2016 comes into force. [Back] Note 3 Schedule 8 also amends s.88 to provide that where a person succeeds to a secure tenancy by an express provision in the tenancy rather than an automatic statutory right, that person is a successor for the purposes of s.86G. [Back] Note 4 Save in respect of any outstanding cases in which the tenant has already died and the question of succession has not yet become academic: paragraph 15 of schedule 8 to the HPA 2016.
Note 1 And to treat a person who was living with the tenant as if they were the tenant’s spouse or civil partner as the spouse or civil partner as the case may be: s.86A(5). [Back]
Note 2 Section 87 was amended by s.160 LA to apply to Wales only. By s.160(6), this amendment does not apply in relation to secure tenancies that were granted before 1 April 2012. The position, therefore, is that (a) for secure tenancies granted before 1 April 2012, s.87 applies in its un-amended form in both England and Wales; (b) for secure tenancies granted after 1 April 2012 (i) s.86A applies in England; and (ii) s.87 in its amended form applies in Wales. The law in Wales will change once the Renting Homes (Wales) Act 2016 comes into force. [Back]
Note 3 Schedule 8 also amends s.88 to provide that where a person succeeds to a secure tenancy by an express provision in the tenancy rather than an automatic statutory right, that person is a successor for the purposes of s.86G. [Back]
Note 4 Save in respect of any outstanding cases in which the tenant has already died and the question of succession has not yet become academic: paragraph 15 of schedule 8 to the HPA 2016. [Back]