Court of Appeal rules that social housing legislation does not breach human rights – Ben Lask acts for Secretary of State

01 Nov 2019 | by Monckton Chambers

Simawi v (1) London Borough of Haringey (2) Secretary of State for Housing, Communities and Local Government [2019] EWCA 1770.

The Court of Appeal has upheld the statutory rules governing the right to take over a social housing tenancy when the former tenant dies, in the face of a challenge under Article 14 of the European Convention on Human Rights (ECHR): Simawi v (1) London Borough of Haringey (2) Secretary of State for Housing, Communities and Local Government [2019] EWCA 1770.

The Appellant’s mother was the secure tenant of a property owned by the local authority. She had succeeded to the tenancy automatically upon the death of her husband in 2001 and, since she was therefore a “successor” for the purposes of the Housing Act 1985, the Appellant was unable to succeed to the tenancy when his mother died in 2013. The 1985 Act allows for only one statutory succession before the property reverts to the local authority for reallocation to others in need of accommodation. In certain circumstances, however, a tenancy can pass from one person to another without the one statutory succession being “used up”. An example is where it is assigned by the Court in divorce proceedings, the result being that the son of a secure tenant who had acquired the tenancy upon divorce could (unlike the Appellant) succeed to the tenancy when his mother died.

The Appellant had resisted a claim for possession brought by the local authority, arguing that the rules on succession discriminated unlawfully between the children of widows and the children of divorcees, such that they contravened Article 14 of the ECHR, in conjunction with Article 8. Since he sought a declaration of incompatibility under the Human Rights Act 1998, the Secretary of State was joined to the proceedings.

The High Court had rejected the Appellant’s case in 2018 and, in a judgment handed down on 31 October 2019, the Court of Appeal reached a similar conclusion. The Court accepted the Secretary of State’s case that (1) the treatment complained did not arise from a protected status under Art. 14; (2) there was no indirect discrimination against women; and (3) in any event, the statutory rules were objectively justified. In particular, since the rules ensured that the one succession rule did not act as a deterrent to divorce, including in cases of domestic abuse, they satisfied the relevant test for justification (i.e. they were not “manifestly without reasonable foundation”). As a result, the Appellant’s appeal was dismissed.

Ben Lask successfully represented the Secretary of State in both the High Court and Court of Appeal.

The judgment can be read here.