The Mayor and Burgesses of the London Borough of Haringey v Mulkhis Simawi
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin,The Honourable |
| Judgment Date | 19 February 2018 |
| Neutral Citation | [2018] EWHC 290 (QB) |
| Date | 19 February 2018 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ15X03584 |
[2018] EWHC 290 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Nicklin
Case No: HQ15X03584
and
Sam Phillips (instructed by Legal Services, London Borough of Haringey) for the Claimant
Toby Vanhegan (instructed by Burke Niazi Solicitors) for the Defendant
Ben Lask (instructed by the Treasury Solicitor) for the Interested Party
Hearing date: 8 February 2018
Judgment Approved
This claim was issued in the Clerkenwell & Shoreditch County Court on 3 June 2014. It started life as a simple claim for possession of a 2-bedroom maisonette in Hornsey (“the property”). The Defendant's father had been granted a secure weekly tenancy of the property by the Claimant on 8 August 1994. The Defendant's father died in June 2001. His wife, the Defendant's mother, succeeded to his secure tenancy on his death pursuant to s.87 Housing Act 1985 (“HA 1985”). The date of succession was 11 June 2001. The property was the family home.
On 27 October 2013, the Defendant's mother died. On 1 November 2013, the Defendant contacted the Claimant to notify it of the death of his mother and to request that the tenancy of the property be transferred to him. He based his claim on the fact that, immediately prior to his mother's death, he had been occupying the property as his only or principal home for over 10 years. The Claimant refused, relying upon the terms of ss.87–88 HA 1985, on the ground that his mother had herself been a successor under s.87 HA 1985 (“the no second succession rule”).
Having refused to allow the Defendant to succeed the tenancy, the Claimant served a notice to quit on the Defendant on 10 December 2013. The Defendant did not surrender possession and, ultimately, on 3 June 2014, the Claimant commenced possession proceedings which the Defendant defended.
In his Defence, the Defendant claimed that he was the secure tenant of the property by succession contending that the no second succession rule contained in ss.87–88 HA 1985 was incompatible with the Human Rights Act 1998, Schedule 1, Articles 8 and 14.
Statutory Scheme
At the relevant time, the relevant provisions of the HA 1985 were:
s.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 s.88.
s.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 s.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 s.86 (periodic tenancy arising on ending of terms certain) and the first tenancy there mentioned was granted to another person or jointly to him or another person, or
(d) he became a tenant on the tenancy being assigned to him (but subject to subsections (2) and (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.
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)).
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. 1 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”). 2 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.
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 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. 3 However, this change will apply only in cases where the tenant dies after the amendment comes into force: paragraph 15 of schedule 8.A commencement date for schedule 8 of the HPA 2016 has not yet been appointed.
Alleged Incompatibility
The grounds of the alleged incompatibility were set out in the Defence. In summary, it was contended that the relevant sections of the Housing Act treated differently a tenant whose partner died and a tenant whose marriage/civil partnership with his/her partner had broken-down. In the former case, the tenant was treated as a successor under ss.87–88 of the Act. In the latter case, if the tenancy was assigned under a property assignment order made in matrimonial proceedings then the person remaining in resident would become a tenant de novo. In consequence, the Defendant contends that a child who would otherwise satisfy the succession requirements of the Housing Act is treated less favourably if his/her parent was a sole tenant because of death than as a result of relationship breakdown.
Paragraphs 21 to 23 of the Defence contend:
21. The Defendant asserts that:
(i) whether a person becomes a sole tenant through death or assignment after relationship breakdown is a status for the purposes of Art 14 of Schedule 1 of the Human Rights Act 1998; and
(ii) … the potential successor children of such persons are in an ‘analogous position’ with each other for the purposes of Art 14 of Schedule 1 of the Human Rights Act 1998; and
(iii) there is no sensible justification for the less favourable treatment accorded to successors by death and their putative successor children; and therefore
(iv) the ‘no second succession rule’ is incompatible with Art 14 and Art 8 of Schedule 1 of the Human Rights Act 1998.
21a. Further, the distinction drawn in s.88 is indirectly discriminatory on gender grounds. The distinction is prima facie gender neutral. However, the distinction adversely affects women and their putative successors relative to men. This is because women as a class live longer than men, and so are statistically more likely to become sole tenants as a result of widowhood rather than divorce. Sole tenancy arising consequent upon divorce is gender neutral – as obviously both parties to the relationship are alive. However, because of women's greater longevity, the surviving sole tenant consequent upon widowhood is more likely to be a woman than a man.
22. The Defendant further avers that it is possible for the court – in accordance with the Human Rights Act 1998 s.3 – to lend the Housing Act 1988 (sic) ss.87–88 a meaning which is compatible with Art 14 of Sch 1 of the Human Rights Act 1998 by, for example, reading the italicised words below into s.88(e):
(e) he became the tenant on the tenancy being vested in him on the death of the previous tenant unless he/she was the spouse of the previous tenant and the previous tenant was not him/herself a successor to the tenancy or…
23. If the court accepts that the above cited provisions of the Housing Act 1985 create a legal position which is incompatible with Art 14, but that it is not possible per the Human Rights Act 1998 s.3 to construe these provisions in a Convention-Rights compatible manner, then this matter should stand adjourned so that the Defendant may seek a declaration of incompatibility in the High Court per the Human Rights Act 1998 s.4.
This was the first ground upon which the Defendant resisted the claim for possession (“Ground 1”). The Defendant also contended that the Council's decision not to grant a discretionary tenancy to the Defendant was unlawful. That second ground is not relevant for the issue I have to decide.
In light of the incompatibility...
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