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London borough defeats Court of Appeal challenge over succession rules

The London Borough of Haringey has successfully defended a Court of Appeal challenge over the rules relating to the succession to secure council tenancies.

The issue in the appeal of Simawi v London Borough of Haringey [2019] EWCA Civ 1770 was whether the statutory provisions governing succession to secure tenancies granted before 1 April 2012 * unlawfully discriminated against Mukhlis Simawi because of his status.

In 1994 Haringey Council granted a secure tenancy of 25 Chettle Court to Mr Simawi's parents, Aziz Simawi and Fatima Hussein. The tenancy was a joint tenancy.

Aziz Simawi died in 2001. Mrs Hussein thus became the sole tenant by right of survivorship. Under the statutory provisions relating to succession then in force, that counted as a first succession.

Mrs Hussein died in October 2013. Mr Simawi was living with her at the date of her death, and had been for at least the preceding twelve months. However, because only one succession was permitted under the statute, Mr Simawi was not entitled to succeed to the tenancy.

Mr Simawi argued that if his parents had been divorced, and the tenancy had been transferred to his mother by court order in the course of the divorce proceedings, that transfer would not have counted as a first succession. In that situation, he would have been entitled to succeed to the tenancy on his mother's death.

The fact that he could not do so in the events which had happened amounted to unlawful discrimination on the ground of his status, he said.

In the High Court Mr Justice Murray rejected that argument in a judgment at [2018] EWHC 2733 (QB), [2019] PTSR 615. Mr Simawi appealed.

Taking articles 8 and 14 of the European Convention on Human Rights together, he said 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) amounted to unlawful discrimination. Stephen Knafler QC, on the appellant’s behalf, called this the "death-divorce dichotomy".

Lord Justice Lewison, with whom Lord Justice Bean and Lord Justice Baker agreed, dismissed the appeal.

The judge described Mr Justice Murray’s conclusion that being the child of a widowed parent rather than a divorced parent was capable of amounting to an ‘other status’ was “a tenable conclusion”.

It was, in Lord Justice Lewison’s judgment, “difficult to see how the ‘status’ on which Mr Knafler [counsel for Mr Simawi] is entitled to rely constitutes the ground on which the alleged discrimination exists. It cannot simply be the status of being the child of a widow rather than the child of a divorcee.”

The Court of Appeal judge added: “In the first place, ….. there will be many situations in which the child of a divorcee will not be entitled to succeed to a secure tenancy. Second, if the secure tenancy had originally been granted to Mrs Hussein alone, Mr Simawi would have been entitled to succeed, whether or not she had divorced her husband. So one essential ground of the alleged discrimination must be the historic fact that the tenancy that Haringey granted was a joint tenancy.

“Nor is it possible to say that the ground of the discrimination is that Mrs Hussein became tenant by succession on death rather than following a relationship breakdown. Exactly the same consequences would have followed a relationship breakdown unless Mrs Hussein had obtained a formal court order under section 24 of the 1973 Act [the Matrimonial Causes Act 1973].”

Lord Justice Lewison said it was “clear, then, that the identification of the discrimination upon which Mr Knafler relies is dependent both on the nature of the tenancy originally granted and also on the manner in which Mrs Hussein became the sole tenant. The agreement into which Haringey and his parents chose to enter cannot, in my judgment, be regarded as anything to do with Mr Simawi's status.”

Those contractual arrangements, and the effect of the secure tenancy regime on those arrangements could not, therefore, be regarded as discrimination on the ground of an "other status" for the purposes of article 14,” Lord Justice Lewison said.

The judge found that to the extent that Mr Simawi had been discriminated against, that discrimination had not been discrimination on the ground of his ‘other status’.

Lord Justice Lewison also rejected the second way in which the case was put, namely that the succession rules amounted to indirect discrimination against women.

More women than men benefitted from succession rights, the judge said. “On the face of it, the advantages and disadvantages appear to be in balance.”

He also pointed to the fact that Mr Simawi's own position would be “exactly the same whether his father had died before his mother; or his mother had died before his father”.

Lord Justice Lewison said that that was enough to dispose of the appeal. However, he went on to find that the difference in treatment was “not manifestly without reasonable foundation”.

Landmark Chambers, where Stephen Knafler QC is a tenant, said Mr Simawi would be applying to the Supreme Court for permission to appeal. "This may be an opportunity for the Supreme Court to consider the recent ECtHR case of JD ​and A v United Kingdom", it added.

* Rights of succession were significantly curtailed by section 160 of the Localism Act 2011; but those provisions do not apply to tenancies granted before the section came into force (i.e. on 1 April, 2012: section 160 (6)). They did not therefore apply to this case, Lord Justice Lewison said.

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