Mr Mukhlis Simawi v The Mayor and Burgesses of the London Borough of Haringey
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Bean,Lord Justice Baker |
| Judgment Date | 31 October 2019 |
| Neutral Citation | [2019] EWCA Civ 1770 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2018/2686 |
| Date | 31 October 2019 |
and
[2019] EWCA Civ 1770
Lord Justice Lewison
Lord Justice Bean
and
Lord Justice Baker
Case No: A2/2018/2686
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
Mr Justice Murray
HQ15X03584
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr S Knafler QC, Mr T Vanhegan & Ms H Gardiner (instructed by Burke Niazi Solicitors) for the Appellant
Mr N Grundy QC & Mr S Philips (instructed by LB Haringey Legal Services) for the Respondent
Mr B Lask (instructed by SSHCLG) for the Interested Party
Hearing date: 15 October 2019
Approved Judgment
Introduction
The issue on this appeal is whether the statutory provisions governing succession to secure tenancies unlawfully discriminate against Mr Simawi because of his status.
In 1994 Haringey LBC 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 is permitted under the statute, Mr Simawi is not entitled to succeed to the tenancy.
Mr Simawi argues 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 cannot do so in the events which have happened amounts to unlawful discrimination on the ground of his status.
Murray J rejected that argument in a judgment at [2018] EWHC 2733 (QB), [2019] PTSR 615. With the permission of Floyd LJ Mr Simawi appeals.
Secure tenancies
Secure tenancies were introduced by the Housing Act 1980; which also introduced the right to buy. The broad intention was to give security of tenure to tenants of local authorities and other public sector landlords; and to enable secure tenants to buy their homes at a discount to market value. Until then, the main form of security of tenure enjoyed by short-term tenants was that under the Rent Acts. But those Acts did not apply to public sector landlords. Security of tenure under the Rent Acts took the form of a so-called statutory tenancy. A statutory tenancy was not a tenancy at all: it was no more than a personal status of irremoveability. Despite that, it was a status to which a family member of a deceased tenant could succeed. In general, two successions were permitted.
The scheme applicable to secure tenancies was different. A secure tenancy was a true tenancy, which continued until brought to an end either by act of the tenant or by court order. If it was a fixed term tenancy, a periodic tenancy came into being on its expiry. As a true tenancy, it was in theory capable of being transferred either by assignment or by devolution on death. Like the Rent Acts, the Housing Act 1980 in its original form contained provisions about succession. Section 30 permitted a deceased tenant's spouse or other family member to succeed to the tenancy “unless the tenant was a successor”. Section 31 defined who counted as a successor. A tenant was a successor if:
i) The tenancy vested in him on the death of a previous tenant;
ii) He was a joint tenant and had become the sole tenant;
iii) The tenancy was a periodic tenancy arising on the expiry of a fixed term tenancy granted to another person or jointly to him and another person; or
iv) He became the tenant on the tenancy being assigned to him or on its being vested in him on the death of the previous tenant.
There was an important exception to this rule. A tenant to whom the tenancy had been assigned in pursuance of an order under section 24 of the Matrimonial Causes Act 1973 was a successor only if the other party to the marriage was himself a successor.
In substance, these provisions were reproduced when the legislation was consolidated in the Housing Act 1985: sections 87 and 88. Changes were subsequently made to accommodate civil partnerships and overseas divorces. In those cases, transfers made under court orders were treated in the same way as assignments pursuant to orders under the Matrimonial Causes Act 1973. In other words, they did not count as a first succession.
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 do not therefore apply to our case.
Thus, the one succession rule, in its various forms, has been a feature of the statutory scheme from its inception to date.
Transfer of tenancy on divorce
There are a number of ways in which a secure tenancy may be transferred from one spouse to another (or from spouses holding jointly to one of them alone) when a marriage breaks down. In what follows, I will deal with divorce only; but similar considerations apply on the breakdown of a civil partnership.
The first, and most obvious, way of transferring a tenancy from one spouse to another, or by spouses holding jointly to one of them alone is by agreement. The landlord's consent would be required: Housing Act 1985 s. 92 (1). But there are statutory provisions as well.
Section 24 of the Matrimonial Causes Act 1973 gives the court power to order a party to a marriage to transfer property to the other party (or to a child). Property includes a secure tenancy: Jones v Jones [1997] Fam 59. This power extends to an overseas divorce: Matrimonial and Family Proceedings Act 1984 s. 17. In deciding whether to exercise this power, the court will have regard to the local authority's housing policy; and to the consequences of the court's order on each of the parties to the marriage and to the consequences for any children: Jones v Jones.
Paragraph 7 (1) of Schedule 7 to the Family Law Act 1996 applies where a spouse, civil partner or cohabitant is entitled to a secure tenancy. That paragraph gives the court power by order to direct that, as from a date specified in the order, a secure tenancy be transferred to and vested in the other spouse, civil partner or cohabitant. The order itself effects the transfer, and the co-operation of the parties is not required. The landlord has the right to be heard: Family Procedure Rules 2010 Part 8.31 and 32. If the spouse entitled to the secure tenancy is a successor within the meaning of Part 4 of the Housing Act 1985, his former spouse is deemed to be a successor: para 7 (3).
Paragraph 1 (2) (e) of Schedule 1 to the Children Act 1989 gives the court power to order either or both parents of a child to transfer property for the benefit of the child. Where the parent in question is a joint secure tenant, that power includes power to order the transfer of the secure tenancy from both parents to one of them alone: K v K (Minors: Property Transfer) [1992] 1 WLR 530. In fact the application need not be made by the parent of a child: it may be made by a guardian or special guardian, or by any person named in a child arrangements order. The order for transfer may be made in favour of that person.
As a general rule, a secure tenancy is incapable of assignment: Housing Act 1985 s. 91 (2). But there are exceptions to this rule. Those exceptions include all the means of transferring a tenancy on the breakdown of a relationship that I have summarised above; an order under the Children Act, and also an assignment to someone who would be qualified to succeed to the tenancy if the tenant died immediately before the assignment: s. 91 (3). Whether any of these means of transfer use up the one permitted succession is a different question.
Housing Act 1985 section 88
Section 87 of the Housing Act 1985 (in its unamended form) contains the basic rule about succession. It provides:
“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 civil partner, or
(b) he is another member of the tenant's family and has resided with the tenant throughout the period of twelve months ending with the tenant's death;
unless, in either case, the tenant was himself a successor, as defined in section 88.”
Section 113 defines who is a member of the tenant's family. So far as material it provides:
“(1) A person is a member of another's family within the meaning of this Part if—
(a) he is the spouse or civil partner of that person, or he and that person live together as husband and wife or as if they were civil partners, or
(b) he is that person's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece.”
Where there is more than one person who potentially qualifies to succeed to a tenancy, section 89 (2) provided:
“(2) Where there is a person qualified to succeed the tenant, the tenancy vests by virtue of this section in that person, or if there is more than one such person in the one to be preferred in accordance with the following rules—
(a) the tenant's spouse or civil partner is to be preferred to another member of the tenant's family:
(b) of two or more other members of the tenant's family such of them is to be preferred as may be agreed between them or as may, where there is...
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