Rules on social housing do not breach human rights

19 Oct 2018 | by Monckton Chambers

The High Court has held that the statutory rules governing the right to take over a social housing tenancy when the former tenant dies do not discriminate unlawfully between widows and divorcees contrary to Article 14 of the European Convention on Human Rights (ECHR): London Borough of Haringey v Simawi and Secretary of State for Housing, Communities and Local Government [2018] EWHC 2733.  Ben Lask acted for the Secretary of State.

The Defendant’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 Defendant was unable to succeed to the tenancy when she 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 Defendant) succeed to the tenancy when she died.

The Defendant resisted a claim for possession brought by the local authority, arguing that the rules on succession discriminated unlawfully between widows and 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.

In a judgment handed down on 19 October 2018, the High Court (Mr Justice Murray) rejected the Defendant’s case, accepting the Secretary of State’s submission that 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 had a legitimate purpose and satisfied the relevant test for proportionality (i.e. they were not “manifestly without reasonable foundation”).  As a result, the Defendant’s application for a remedy under the Human Rights Act 1998 was refused.

The judgment can be read here.