London Borough of Haringey v Simawi & Anor

Sections 87–88 of the Housing Act 1985, including the exception for judicial assignment following matrimonial proceedings, were not incompatible with articles 14 and 8 of the Convention. The difference between succession following death and succession following judicial assignment pursued a legitimate policy objective and was not manifestly without reasonable foundation. The wide margin of appreciation applicable to general measures of economic or social strategy therefore applied. The court also rejected the associated claim of indirect gender discrimination. The article 14 questions should be approached holistically and without rigid compartmentalisation.

The claim concerned possession of a two-bedroom local-authority maisonette. The defendant had remained in occupation after his mother, herself a successor to the secure tenancy, died. His statutory succession was barred by the one-succession rule in sections 87–88 of the Housing Act 1985.

The possession claim had already failed on a separate challenge to the local authority’s refusal to grant a discretionary tenancy. The defendant continued to pursue a declaration that the statutory scheme unlawfully discriminated against children of widowed tenants when compared with children of divorced tenants, and sought relief under sections 3 or 4 of the Human Rights Act 1998. The central issues were analogy, status, justification and alleged indirect gender discrimination.

1. Disposition. The application for relief under sections 3 and 4 of the Human Rights Act 1998 was dismissed.
2. The four-stage article 14 analysis identified in Re McLaughlin [2018] UKSC 48, following Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271, had to be applied holistically. The questions concerning analogy, status and justification were not rigidly compartmentalised.
3. The court proceeded on the tentative basis that the relevant family members were in analogous situations. Whether situations were analogous had to be assessed in the light of the statutory scheme. The court also considered that the alleged status, being the child of a widowed rather than divorced parent, was at the outer and more debatable edge of article 14 status.
4. The statutory succession scheme concerned the allocation and management of scarce social housing. It was therefore a general measure of economic or social strategy attracting a wide margin of appreciation. The applicable standard was whether the differential treatment was manifestly without reasonable foundation. That stringent test was not met.
5. Section 88(2) had a rational and legitimate purpose. It prevented the one-succession rule from discouraging divorce, including in cases involving domestic abuse, and recognised the fact-sensitive judicial assessment involved in matrimonial assignment. The absence of specific contemporaneous parliamentary evidence was not fatal. The structure of the legislation itself, including the related exception in section 91(3), supported the conclusion that the distinction was deliberate rather than arbitrary or capricious.
6. Because section 88(2) was objectively justified, there was no unlawful discrimination under articles 14 and 8. For the same reasons, there was no indirect gender discrimination. The requested reading down or declaration of incompatibility was therefore inappropriate.

The possession claim was issued in the Clerkenwell & Shoreditch County Court. A possession order was made on 21 October 2014 and an appeal was allowed on 3 July 2015. The claim was then transferred to the High Court because of the human-rights issue.

High Court (Queen's Bench Division) — The present judgment determined the outstanding Ground 1 issue and dismissed the application for relief under sections 3 and 4 of the Human Rights Act 1998. The earlier High Court decision concerning whether the issue should proceed, LB Haringey v Simawi [2018] EWHC 290 (QB) , directed that the hearing proceed because the issue was of general public importance.