Simawi v London Borough of Haringey

A difference in treatment engages article 14 only if it is on the ground of a qualifying status. That status cannot be defined entirely by the alleged discrimination. Historic facts about the original form of a secure tenancy and the mechanism by which one joint tenant became sole tenant do not constitute such a status.

In socio-economic policy concerning access to social housing, alleged discrimination is justified unless the measure is manifestly without reasonable foundation. The one-succession rule, and the narrow exception for a court-ordered matrimonial assignment, rationally balance family security, housing need and effective management of scarce public housing. On appeal, justification is reviewed as an evaluative judgment. A different permissible evaluation is insufficient to overturn the first-instance decision.

The appellant lived with his mother, the surviving tenant of a joint secure tenancy, until her death. Her acquisition of the sole tenancy by survivorship counted as the one permitted succession under sections 87 and 88 of the Housing Act 1985. The appellant was therefore unable to succeed.

He alleged discrimination contrary to articles 8 and 14 of the Convention. He compared his position with that of a family member whose parent had received the tenancy under a court order made on divorce, because section 88(2) preserves a further succession in that situation. He also alleged indirect discrimination against women.

Murray J dismissed the claim in [2018] EWHC 2733 (QB), [2019] PTSR 615. The central questions were whether the difference arose from the appellant's status, whether it indirectly discriminated against women, and whether it was justified.

1. Appeal dismissed. The alleged difference in treatment was not discrimination on the ground of the appellant's “other status” for article 14 purposes. Being the child of a widowed rather than divorced parent was capable of being a status. The actual distinction nevertheless depended on the historic grant of a joint tenancy and on the particular mechanism by which the mother became sole tenant. Those contractual and statutory facts were not the appellant's status.

2. The proposed comparator was also oversimplified. A child of a divorced tenant does not generally retain succession rights. A voluntary assignment, an order under other statutory powers, an unchanged joint tenancy, or termination by a departing joint tenant may all prevent a later succession. Section 88(2) benefits only the limited group whose family member obtained a court-ordered assignment under section 24 of the Matrimonial Causes Act 1973.

3. The combination of sections 87 and 88 of the Housing Act 1985 did not indirectly discriminate against women. Although women were statistically more likely to be surviving spouses, they were correspondingly more likely to benefit from succession. Women were also more likely to benefit from the matrimonial exception. The appellant's position would have been unchanged if the order of his parents' deaths had been reversed.

4. In any event, the measure was justified. Access to social housing is a field of socio-economic policy analogous to welfare benefits. The applicable inquiry was whether the measure was manifestly without reasonable foundation. That standard is more stringent than ordinary proportionality and was not diluted by observations about the evidential burden.

5. The first-instance assessment of justification was an evaluative judgment. Appellate intervention required an identifiable flaw undermining the conclusion; it was insufficient that the appellate court might have reached a different evaluation. No such flaw was established.

6. The one-succession rule rationally balances family attachment to a home against housing need and management of scarce stock. Treating survivorship and ordinary assignments as successions prevents tenancies passing through generations. Parliament could confine the exception to a fact-sensitive court-ordered matrimonial transfer, both to address hardship on relationship breakdown and to guard against circumvention. The exception was not manifestly without reasonable foundation.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2019] EWCA Civ 1770.
2. High Court, Queen's Bench Division: Murray J rejected the discrimination claim: [2018] EWHC 2733 (QB), [2019] PTSR 615.