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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> London Borough of Haringey v Simawi & Anor [2018] EWHC 2733 (QB) (19 October 2018) URL: https://www.bailii.org/ew/cases/EWHC/QB/2018/2733.html Cite as: [2019] PTSR 615, [2019] 1 P & CR DG8, [2018] EWHC 2733 (QB), [2019] HLR 13, [2019] 2 All ER 334, [2018] WLR(D) 645 |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HARINGEY |
Claimant |
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| - and - |
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MULKHIS SIMAWI | Defendant |
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| - and - |
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| SECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENT |
Interested Party |
____________________
Mr Toby Vanhegan and Ms Hannah Gardiner (instructed by Burke Niazi Solicitors) for the Defendant
Mr Ben Lask (instructed by Treasury Solicitor) for the Interested Party
Hearing dates: 2 and 3 October 2018
____________________
Crown Copyright ©
Mr Justice Murray :
Simawi,
the defendant in these proceedings, is seeking declaratory relief in relation to the "one succession rule" set out in sections 87-88 of the Housing Act 1985. He asks 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 Housing Act 1985 in the manner for which he contends, as discussed further below; or
ii) declare under section 4 of the 1998 Act that sections 87-88 of the Housing Act 1985 are incompatible with the rights and fundamental freedoms ("the Convention rights") in article 14 in conjunction with article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") as set out in Schedule 1 to the 1998 Act.
i) the one succession rule is incompatible with articles 14 and 8 of the Convention ("Ground 1"); and
ii) LB Haringey's decision not to grant a discretionary tenancy to Mr
Simawi
was unlawful, inter alia, by reason of LB Haringey's failure correctly to apply its own policy ("Ground 2").
Simawi's
application for a declaration of incompatibility, as required by CPR 19.4A.
Simawi
on Ground 1 and Ground 2. Mr
Simawi
succeeded on Ground 2. Accordingly, LB Haringey's decision was unlawful, and the claim for possession fails. Mr
Simawi,
however, continues to pursue Ground 1, seeking the relief I have described above. On 10 November 2016 Supperstone J, noting that it did not appear that Singh J's order of 26 June 2016 had been served on the Crown, ordered that it be served on the Government Legal Department for the Secretary of State for Communities and Local Government and directed that, if the Secretary of State gave notice of his intention to be joined as a party to the proceedings, that he had permission to file a position statement by 4:00pm on Friday, 9 December 2016.
Simawi
were offered and accepted a new secure tenancy, Ground 1 would become academic, and if he refused to accept a new secure tenancy, it would not become academic.
Simawi.
Directions were agreed at the hearing for the service of evidence and skeleton arguments, with a hearing for up to two days fixed for 2 October 2018. Nicklin J was also asked to determine whether the hearing on 2 October 2018 should go ahead even if Ground 1 became academic at some stage. The defendant urged Nicklin J to make such an order, the issue being one of public importance. LB Haringey and the Secretary of State opposed the making of the order. In a considered judgment handed down on 19 February 2018, Nicklin J concluded that the circumstances were exceptional and that Ground 1 raises a real point of some general importance potentially affecting a significant number of people, possibly for years to come: LB Haringey v
Simawi
[2018] EWHC 290 (QB). He therefore made an order that the hearing on 2 October 2018 should proceed even if the claim between LB Haringey and
Simawi
was otherwise resolved. This is my judgment in relation to Ground 1 as considered at that hearing.
Background facts
Simawi
was born on 2 February 1969. By an agreement dated 25 July 1994, LB Haringey granted to his parents, Mr Aziz
Simawi
and Mrs Fatima Hussein, a joint secure tenancy of the Property, which commenced on 8 August 1994. In June 2001 Mr Aziz
Simawi
passed away. By an agreement dated 28 January 2002, Mrs Hussein was recognised as the sole tenant by succession from 11 June 2001. On 27 October 2013 Mrs Hussein passed away.
Simawi
applied for a discretionary tenancy. LB Haringey refused the application, setting out in a letter dated 31 March 2014 as their principal reason that the evidence provided did not corroborate a continuous five years residence at the Property. In a separate letter dated the same day, LB Haringey advised Mr
Simawi
that he was occupying the Property without their permission, and that he must therefore leave the Property immediately, failing which legal proceedings to evict him would be taken without further notice.
Sections 87 and 88 of the Housing Act 1985
"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 section 88.
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 section 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 section 86 (periodic tenancy arising on ending of term certain) and the first tenancy there mentioned was granted to another person or jointly to him and another person, or
(d) he became the tenant on the tenancy being assigned to him (but subject to subsections (2) to (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."
"6. The effect of ss.87-88 HA 1985 is, so far as material:
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)).
7. Section 160 of the Localism Act 2011 ('LA 2011') inserted a new s.86A into the HA 1985. The effect of s.86A is to limit the statutory right of succession to spouses and civil partners. s.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, s.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 s.87 as described at paragraph 6(i) above. The LA 2011 did not amend s.88.
8. 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 s.86A as s.86G and inserts a new subsection (8): paragraph 3 of schedule 8. The effect of s.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: paragraph 15 of schedule 8."
Simawi's
mother on 11 June 2001. The Housing and Planning Act 2016 equally does 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.
Simawi's
mother could have been treated as a successor under any of clauses (a), (b) or (e) of section 88(1) of the Housing Act 1985, and that it is immaterial which one applies. In each case, by virtue of his mother having become a successor, the "one succession rule" applies, thus preventing a further statutory succession in his favour.
Simawi
does not allege that the "one succession rule" is in itself incompatible with article 14 of the Convention, read with article 8. He makes 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 Convention, Mr Justice Moses (as he then was) noted at [23] that in formulating the rules of succession in the Housing Act 1985:
"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 unless that judgment was manifestly without reasonable foundation …. 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."
The relevant legal principles
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"[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 treatment?"
"In my view, the Michalak questions are a useful tool of analysis but there is a considerable overlap between them: in particular between whether the situations to be compared were truly analogous, whether the difference in treatment was based on a proscribed ground and whether it had an objective justification. If the situations were not truly analogous it may be easier to conclude that the difference was based on something other than a proscribed ground. The reasons why their situations are analogous but their treatment different will be relevant to whether the treatment is objectively justified. A rigidly formulaic approach is to be avoided."
That is therefore the approach I must adopt.
Simawi
says that his relevant "rights and freedoms" under the Convention that have been affected are his rights under article 8 of the Convention, which is headed "Right to respect for private and family life". Article 8:
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Simawi
has occupied as his home for some years, it falls within the ambit of article 8 of the Convention. I agree.
The issues
i) the remaining three questions set out by Baroness Hale in Re McLaughlin at [15], as they apply in this case, looking at them holistically;
ii) whether, as Mr
Simawi
contends, section 88 of the Housing Act 1985 is indirectly discriminatory on gender grounds; and
iii) if I find in favour of Mr
Simawi's
claim, whether I should grant one of the remedies sought by the defendant.
i) for the Court to exercise its power under section 3 of the Human Rights Act 1998 to read and give effect to section 88 of the Housing Act 1985 as though section 88(1)(e) included the words italicised below:
"(e) he became the tenant on the tenancy being vested in him on the death of the previous tenant save where he was the spouse or civil partner of the deceased previous tenant, or"; or
ii) if the Court does not consider that it is possible to use its power under section 3 of the Human Rights Act 1998, for the Court to make a declaration of incompatibility under section 4 of the Human Rights Act 1998.
Difference in treatment between two persons in an analogous situation
Simawi
says that the legislation treats differently a person who became a sole tenant consequent upon the death of a former tenant and a person who became a sole tenant consequent upon a judicial assignment of the tenancy following divorce, and yet these two persons are in an analogous situation. Mr Toby Vanhegan, counsel for Mr
Simawi,
refers to this as the "death-divorce dichotomy".
Simawi
submits that the new spouses, following death and divorce respectively, are in analogous situations.
Simawi
submits that the qualifying family members, following death and divorce respectively, are in analogous situations.
Simawi
is a qualifying family member, relative to his mother, who was the successor to the secure tenancy at the Property upon the death of her husband, Mr
Simawi's
father.
Simawi
says that a qualifying family member who is barred from succession under the one succession rule following the death of a widowed parent is in an analogous position to a qualifying member who is entitled to succeed following the death of a divorced parent. Yet, assuming that the divorced parent was not a "successor" for the purpose of section 87 of the Housing Act 1985 by virtue of the final words of section 88(2) of the Housing Act 1985, the qualifying family member is treated differently. There is, therefore, a difference in treatment of persons in an analogous position. That is this case.
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.
Difference of treatment on the ground of relevant status
"[I]t seems clear that 'a generous meaning should be given to the words "or other status" ', per my noble and learned friend, Lord Hope of Craighead, in Clift [2007] 1 AC 484, para 48. To similar effect, at para 4.14.21 of Lester & Pannick, Human Rights Law and Practice, 2nd ed (2004), it is stated that the ECtHR applies 'a liberal approach to the "grounds" upon which discrimination is prohibited.' That appears to me to be entirely in accordance with the approach one would expect of any tribunal charged with enforcing anti-discrimination legislation in a democratic state in the late 20th, and early 21st centuries."
Simawi's
case, on this aspect of the four-stage analysis, at its highest.
Simawi
is seeking to define his personal characteristic by the very difference of treatment of which he complains, namely, the fact that his mother became the tenant or sole tenant upon her husband's death and was therefore herself a successor. That is an impermissible approach: R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, Lord Bingham at [28], Lord Hope at [47]. With respect, I think that mischaracterises Mr
Simawi's
argument. The relevant personal characteristic alleged is that he is the child of a widowed parent, rather than the child of a divorced parent, and he is discriminated against on that basis.
Simawi
relative to his chosen comparator, the child of a divorced tenant, based on a personal characteristic of Mr
Simawi.
Article 14 does not apply to differences arising merely from historical fact: S and Marper, per Lord Steyn at [50]. While one can see the force of that observation in the context of the facts of S and Marper, which are quite different to this case, it is of limited use for present purposes. Whether someone is married is a matter of historical fact. Whether someone is homeless is a matter of historical fact. And yet married status and homelessness have been recognised as personal characteristics for purposes of article 14.
i) a person whose mother had always been a sole secure tenant of the property; and
ii) a nephew by marriage of a sole secure tenant with no spouse who had resided with the tenant for at least a year.
"[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 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)."
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. Nicklin J notes at [36] of his judgment that Moses J did not consider the effect of section 88(2), and he therefore concluded that the comparators offered by Mr Gangera do not illuminate the point advanced by Mr
Simawi
in this case. In Gangera, the one succession rule would simply not have been engaged in relation to his comparators. In this case, the one succession rule is specifically disengaged by virtue of a specific provision, section 88(2), that Mr
Simawi
contends has a discriminatory effect relative to someone in his position. So, 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.
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.
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.
Objective justification for difference of treatment
"[I]n order for an issue to arise under art. 14 there must be a difference in the treatment of person in analogous, or relevantly similar, situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background. A wide margin is usually allowed to the state under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the general interest on social and economic grounds, and the Court will generally respect the legislature's policy choice unless it is 'manifestly without reasonable foundation'." (footnotes omitted)
"It appears to me that this is pre-eminently a field in which the courts should defer to the decisions taken by a democratically elected parliament, which has determined the manner in which public resources should be allocated for local authority housing on preferential terms"
Simawi
is, if anything, towards the outer edge of the concentric circles referred to by Lord Walker in RJM at [5]. The MWRF test is therefore the appropriate test. It is the test that was applied by Moses J in Gangera.
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.
i) no evidence has been provided that these were the reasons actually motivating Parliament to introduce section 88(2) (or its predecessor provision in section 31 of the Housing Act 1980), this is an ex post facto justification, long after the original legislation and given by the current government, when what matters is Parliament's intent at the time the statute is enacted;
ii) it is unrealistic to suggest that succession rights are a serious consideration of victims of domestic violence;
iii) there is no such thing as an "automatic statutory succession", given the need to fulfil certain criteria, the fulfilment of which will require investigation, and therefore the contrast with the position in relation to judicial assignment following divorce is unhelpful.
"As to the weight to be attached to the position adopted by the legislature and judiciary in the United Kingdom, there is no evidence that Parliament has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote. …[I]t cannot be said that there was any substantive debate by members of the legislature on the continued justification in light of modern day penal policy and of current human rights standards for maintaining such a general restriction on the right of prisoners to vote."
Indirection discrimination on the basis of gender
Simawi's
article 14 and article 8 rights under the Convention. For essentially the same reasons, there is no indirect unlawful discrimination on the basis of gender. Baroness Hale makes it clear in Humphreys v Revenue and Customs Commissioners [2012] UKSC 18 at [15]-[21] that the MWRF test also applies where it is alleged that legislation indirectly discriminates on the basis of gender where, as in this case, the legislation is concerned with a general measure of economic or social strategy.
Conclusion
Simawi based on Ground 1 of his Defence, either under section 3 or under section 4 of the Human Rights Act 1998. Accordingly, his application for that relief is dismissed.