23 November, 2018
Is the succession rule for secure tenants, under s87 and 88 of the Housing Act 1985 incompatible with the ECHR?
On the 19th October 2011, the recent case of Haringey London Borough Council v Mulkhis Simawi  EWHC 2733 (QB) challenged the court to reconsider the "single succession" rule on secure tenancies granted before 1 April 2012, and whether it was incompatible with the European Convention of Human Rights.
The High Court ruled that the law was compatible with the human rights of the bereaved son. He had not been discriminated against, and any exceptions to the "single succession" rule were carefully chosen by Parliament to prevent injustice to divorced tenants, meaning that further exceptions should not be created by the Court's own motion.
The law around succession has been subjected to appeals and challenges every few years by the relatives of deceased tenants, but such appeals routinely fail because they are effectively asking the Courts to re-write the Housing Acts in their favour. It is hoped that those representing these disappointed appellants will stop bringing such hopeless cases, as they serve only to clog up the County Courts with cases put on hold while the outcomes of these appeals are being considered.
Upon death, one statutory succession of a secure tenancy held by a sole tenant is allowed to a surviving spouse or civil partner who resided at the property at the time of death. For secure tenancies granted before 1 April 2012, succession can occur in favour of a member of the deceased tenant's family if there is no spouse or civil partner living at the property, and provided that the family member had lived with the deceased for 12 months beforehand. Where the tenancy was originally a joint tenancy and a tenant dies, this counts as succession for the purposes of the Act, and no further succession will be allowed. This is aside from any policy operated by the landlord to grant a new discretionary tenancy to a relative of the deceased where no statutory succession is available.
The Defendant's parents had been granted a joint secure tenancy of a property by the local authority in 1994. When his father died in 2011, the Defendant's mother became the sole tenant by succession under s87 of the Housing Act 1985. When his mother died, the Defendant claimed to be a qualifying family member and applied to succeed the tenancy. Despite living with his mother at the time, his application was refused on the application of the single succession rule. Consequently, London Borough Council issued possession proceedings against Mr Simawi on the basis that he was unlawfully occupying the property.
Mr Simawi argued that he had been discriminated against. He claimed that had his mother acquired the tenancy through divorce rather than widowhood, he could have stayed in the property. This was because a person who becomes a sole tenant upon the judicial assignment of the tenancy in a divorce is only considered a successor if the other party to the marriage was a successor. Mr Simawi consequently argued that the Housing Act 1985 should be read in such a way that is compatible with the ECHR, or declare that sections 87 and 88 are incompatible.
It should be noted that for new secure tenancies granted on or after 1 April 2012, the automatic right of succession to wider family members only applies if it is contained in the terms and conditions of the tenancy agreement, meaning that many people in Mr Simawi's position under newer tenancies have even fewer rights than before as a result of the Localism Act 2011.
The court considered a 4 part test, laid down by Baroness Hale in McLaughlin's Application for Judicial Review  UKSC:
The court agreed that the circumstances fell within the ambit of article 8. Article 8 protects the right to your private life, family life, home and correspondence. In this case the Defendant had occupied the property as his home for some years. The court also took the view that the death of a widowed tenant under a secure tenancy was analogous to the position of a qualifying family member following the death of a divorced tenant.
The Judge held that the difference in treatment between the two analogous positions was not based on the status of person as a child or widow. Instead it was the legal mechanism by which the person from whom he would succeed acquired the secure tenancy which determined whether the one succession rule was engaged. Parliament had a rational and legitimate purpose following the exception in s88(2) of the Act, as the section was simply introduced to address issues arising from the adjustment of property in matrimonial proceedings.
The outcome has inevitably ruled in favour of the depleting succession pool, triggered by various recent legislative amendments under the Localism Act 2011 - as already mentioned, these have removed the automatic right of succession to wider family members for secure tenancies granted on or after 1 April 2012 unless such succession rights are expressly contained in the tenancy agreement terms and conditions. The Judge asserted that the 'primary objective of the statutory framework governing how such tenancies are granted and succeeded to ensure that social housing is distributed fairly'. It is thought that this, in line of recent amendments, reasserts the conclusion that social housing is a scarce and finite resource.
Notwithstanding this however, it should not be underestimated the number of people that remain effected by and dependent upon social housing providers. A number of succession cases have remained pending in build up to the Judgment of Haringey London Borough Council v Mulkhis Simawi. Although these cases can now be decided, there are still doubts surrounding the outcome of an appeal. Although this decision has provided clarity surrounding the single succession rule for now, social housing authorities and their lawyers may remain concerned that this case will cast doubt overhead.
Forbes Solicitors assists many RP and local authority landlords in developing and applying succession policies and procedures.
For more information contact Sam Gorrell in our Housing & Regeneration department via email or phone on 0333 207 1130. Alternatively send any question through to Forbes Solicitors via our online Contact Form.