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Statutory Succession and the European Convention on Human Rights

Reasons to choose Wilson Browne

Permission has just been granted for an appeal to determine the lawfulness of a statutory succession scheme…

…in the case of Haringey LBC v. Simawi (Secretary of State for Communities and Local Government intervening) [2018] EWHC 2733.

In the original case Haringey claimed possession of a property on the grounds that the Defendant’s mother was herself a successor and therefore he could not succeed to her tenancy.  The defence relied on two arguments:

  1. that the rule against a second succession was incompatible with the European Convention on Human Rights because if the Defendant’s parents had simply split up and the tenancy had been transferred in family proceedings, he would have been able to succeed. It was also argued that this amounted to indirect discrimination on the grounds of gender and age because women generally live longer and widows are significantly more likely to be elderly. This was called the ‘death-divorce dichotomy’.
  2. the other argument relied upon was that Haringey had not properly applied their discretionary tenancy policy.

The matter was initially heard in the High Court because of the public importance of the first ground. The Defendant was successful on the second ground.   At a preliminary hearing, Nicklin J. decided that the issued presented were exceptional, and “raised a point of real importance and significance that potentially affects a large number of people and the point is likely to arise in several succession cases for many years to come.”

When the matter was heard in October 2018 the court found that a child of a deceased tenant was in an analogous position to a child of a divorced tenant but that it was the legal mechanism by which the mother acquire the tenancy was the relevant factor.  In this case the Court found that the Claimant had no status under Article 14 ECHR.

Haringey are appealing the decision on a variety of grounds including that the judge was wrong to conclude that the Claimant had no status and that the judge did not properly consider the issues of legitimate aim and justification.

The appeal is now listed for hearing in October 2019 and a number of similar cases, previously stayed pending the outcome of this hearing, may well continue to be stayed pending a final decision.

This decision could have far reaching implications for those operating succession policies up and down the Country.

If you need any Housing advice, please contact our Specialist Team.