ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
Mr Justice Murray
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BEAN
LORD JUSTICE BAKER
| MR MUKHLIS SIMAWI
|- and -
|THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HARINGEY
|- and –
|THE SECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENT
MR N GRUNDY QC & MR S PHILIPS (instructed by LB Haringey Legal Services) for the
MR B LASK (instructed by SSHCLG) for the Interested Party
Hearing date : 15 October 2019
Crown Copyright ©
Lord Justice Lewison:
i) The tenancy vested in him on the death of a previous tenant;
ii) He was a joint tenant and had become the sole tenant;
iii) The tenancy was a periodic tenancy arising on the expiry of a fixed term tenancy granted to another person or jointly to him and another person; or
iv) He became the tenant on the tenancy being assigned to him or on its being vested in him on the death of the previous tenant.
Transfer of tenancy on divorce
Housing Act 1985 section 88
"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 civil partner, or
(b) he is another member of the tenant's family and has resided with the tenant throughout the period of twelve months ending with the tenant's death;
unless, in either case, the tenant was himself a successor, as defined in section 88."
"(1) A person is a member of another's family within the meaning of this Part if—
(a) he is the spouse or civil partner of that person, or he and that person live together as husband and wife or as if they were civil partners, or
(b) he is that person's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece."
"(2) Where there is a person qualified to succeed the tenant, the tenancy vests by virtue of this section in that person, or if there is more than one such person in the one to be preferred in accordance with the following rules—
(a) the tenant's spouse or civil partner is to be preferred to another member of the tenant's family:
(b) of two or more other members of the tenant's family such of them is to be preferred as may be agreed between them or as may, where there is no such agreement, be selected by the landlord."
"(1) The tenant is himself a successor if— (a) the tenancy vested in him by virtue of section 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 section 86 (periodic tenancy arising on ending of term certain) and the first tenancy there mentioned was granted to another person or jointly to him and another person, or (d) he became the tenant on the tenancy being assigned to him (but subject to subsections (2) to (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 etc) is a successor only if the other party to the marriage was a successor.
(2A) A tenant to whom the tenancy was assigned in pursuance of an order under Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.) is a successor only if the other civil partner was a successor."
"any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status"
"Consequently, a child who satisfies the succession requirements of Housing Act 1985 ss. 87 and 113 is treated less favourably if her/his parent was a sole tenant by death than if the parent was a sole tenant by relationship breakdown."
Discrimination under article 14
"In article 14 cases it is customary in this country to ask four questions: (1) does the treatment complained of fall within the ambit of one of the Convention rights; (2) is that treatment on the ground of some "status"; (3) is the situation of the claimant analogous to that of some other person who has been treated differently; and (4) is the difference justified, in the sense that it is a proportionate means of achieving a legitimate aim?"
Discrimination on the ground of other status
"I do not think that a personal characteristic can be defined by the differential treatment of which a person complains." (Lord Bingham)
"Each of the specific grounds of discrimination listed in article 14 shares one feature in common. That is that they exist independently of the treatment of which complaint is made. In that sense they are personal to the complainant." (Lord Hope)
"(i) The possible grounds for discrimination under article 14 were not unlimited but a generous meaning ought to be given to "other status".
(ii) The Kjeldsen test of looking for a "personal characteristic" by which persons or groups of persons were distinguishable from each other, was to be applied.
(iii) Personal characteristics need not be innate, and the fact that a characteristic was a matter of personal choice did not rule it out as a possible "other status".
(iv) There was support for the view that the personal characteristic could not be defined by the differential treatment of which the person complained.
(v) There was a hint of a requirement that to qualify the characteristic needed to be "analogous" to those listed in article 14, but it was not consistent … and it was not really borne out by the substance of the decisions.
(vi) There was some support for the idea that if the real reason for differential treatment was what someone had done, rather than who or what he was, that would not be a personal characteristic, but it was not universal.
(vii) The more personal the characteristic in question, the more closely connected with the individual's personality, the more difficult it would be to justify discrimination, with justification becoming increasingly less difficult as the characteristic became more peripheral."
"Proposition (iv) lives on, in R v Docherty  1 WLR 181, but perhaps needs to be considered further, in the light of its rejection in Clift v United Kingdom: see further, below."
i) It had been rejected by the ECtHR in Clift v United Kingdom;
ii) Before Clift v SSHD there was not much authority to support it; and
iii) It was not "at all easy to grasp".
"In all these circumstances, I would be cautious about spending too much time on an analysis of whether the proposed status has an independent existence, as opposed to considering the situation as a whole, as encouraged by the ECtHR in Clift v United Kingdom…. In any event, it can properly be said that the status upon which Mr Stott relies exists independently of his complaint, which is about the provisions concerning his early release."
"That, it seems to me is the true principle: the "status" must not be defined solely by the difference in treatment complained of, for otherwise the words "on any ground such as …" would add nothing to the article."
"… a "particular social group" must exist independently of the persecution to which the group is subject: by this was meant that the group was not defined solely by the persecution it feared."
"I accept that the requirement of an "other status" cannot simply be ignored, or subsumed in the question whether any discrimination is unjustified. This is for at least three reasons. First, the language of article 14 states that there must be discrimination on a ground "such as" those specified, the last being "other status". There would be no point in this language, if the only question was whether there was discrimination."
"That a mere difference in treatment does not by itself constitute a difference in status is a proposition which is difficult to fault in the light of Gerger v Turkey and what I have already said. But problems have arisen from attempts to extend the application of such a proposition to cases beyond its scope. This is, I think, the root of the third difficulty expressed by Lady Black JSC in the first sentence of para  of her judgment. There is no reason why a person may not be identified as having a particular status when the or an aim is to discriminate against him in some respect on the ground of that status."
"(i) whether a person becomes a sole tenant through death or assignment after relationship breakdown is a status for the purposes of Art 14…
(ii) … the potential successor children of such persons are in an "analogous position" with each other for the purposes of Art 14…"
"It seems to me that whether a person is widowed or divorced is capable of being a personal characteristic or status for purposes of article 14. I accept that whether a person is a child of someone who is widowed or a child of someone who is divorced is more "peripheral or debateable" … as a personal characteristic for article 14 purposes, but in my view it is capable of being so in appropriate circumstances. I think that puts Mr Simawi's case, on this aspect of the four-stage analysis, at its highest."
"But however widely "status" may be interpreted it is clear to me that there has been no discrimination on the grounds of status whatsoever. The reason why the claimant is not entitled to succeed to his mother's tenancy does not depend upon his status at all. It is because his mother had become the sole tenant and therefore, by virtue of the operation of s.88(1)(b) of the 1985 Act, she was herself a successor. The difference in treatment follows from the fact of a previous succession not because of the status of the claimant."
Justification: the test
"It is plain that Parliament had to strike a balance between security of tenure and the wider need for systematic allocation of the local authority's housing resources in circumstances where those housing resources are not unlimited. The striking of such a balance is pre-eminently a matter of policy for the legislature. The court should respect the legislative judgment as to what is in the general interest unless that judgment was manifestly without reasonable foundation."
"… while it is well-established that the courts will not hold a difference in treatment in the field of socio-economic policy unjustifiable unless it is "manifestly without reasonable foundation", the cases in which that test - or something like it - has been applied are all cases relating to the welfare benefits system."
"I now accept that the weight of authority in our court mandates inquiry into the justification of the adverse effects of rules for entitlement to welfare benefits by reference to whether they are manifestly without reasonable foundation."
"For by then there was—and there still remains—clear authority … for the proposition that, at any rate in relation to the Government's need to justify what would otherwise be a discriminatory effect of a rule governing entitlement to welfare benefits, the sole question is whether it is manifestly without reasonable foundation. Let there be no future doubt about it."
"How does the criterion of whether the adverse treatment was manifestly without reasonable foundation fit together with the burden on the state to establish justification, explained in para 50 above? For the phraseology of the criterion demonstrates that it is something for the complainant, rather than for the state, to establish. The rationalisation has to be that, when the state puts forward its reasons for having countenanced the adverse treatment, it establishes justification for it unless the complainant demonstrates that it was manifestly without reasonable foundation. But reference in this context to any burden, in particular to a burden of proof, is more theoretical than real. The court will proactively examine whether the foundation is reasonable; and it is fanciful to contemplate its concluding that, although the state had failed to persuade the court that it was reasonable, the claim failed because the complainant had failed to persuade the court that it was manifestly unreasonable."
Manifestly without reasonable foundation: the approach of an appeal court
"… an identifiable flaw in the judge's reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion. However, it is equally clear that, for the decision to be "wrong" under CPR r 52.11(3), it is not enough that the appellate court might have arrived at a different evaluation."
(R (R) v Chief Constable of Greater Manchester Police  UKSC 47,  1 WLR 4079 at )
The judge's conclusion on justification
" As to Mr Vanhegan's submission that it is unrealistic to suggest that succession rights are a serious consideration to a victim of domestic violence, it seems to me that it depends entirely on the circumstances. There is generally an acute stage of relationship breakdown involving domestic abuse where the key consideration is getting the victim and any children to a place of safety away from the abuser. Clearly succession rights are unlikely to be a consideration then. But matrimonial proceedings often follow, over subsequent weeks, months and even years. Housing will be a critical issue then. It is reasonable to suppose that Parliament had this firmly in mind when enacting section 31 of the Housing Act 1980, enacting section 88(2) of the 1985 Act and, under the Housing Act 1996, expanding the scope of section 88(2) (with effect from 1 October 1996 to add reference to section 17(1) of the Matrimonial and Family Proceedings Act 1984). The fact that reference to judicial assignment under matrimonial proceedings is also carefully set out in section 91(3) of the 1985 Act (as amended by section 222 of and paragraph 12 of Schedule 18 to the Housing Act 1996 and section 81 of and paragraph 24 of Schedule 8 and section 261(4) of and paragraph 1 of Schedule 30 to the Civil Partnership Act 2004) as an exception to the general prohibition on voluntary assignment of a secure tenancy set out in section 91(1) of the 1985 Act is further internal evidence from the statute that these provisions are carefully considered and not arbitrary or capricious.
 There is, in my view, no force in Mr Vanhegan's criticism of Ms Walker's distinction between automatic statutory succession and judicial assignment following a fact-sensitive analysis by the court in matrimonial proceedings. If relevant statutory criteria are fulfilled, a secure tenancy passes automatically by statute. The fact that, in theory, a question could arise as to whether a statutory criterion had been fulfilled, requiring investigation or leading to a dispute, does not make this less true.
 Mr Vanhegan's argument that there is no sensible housing policy reason for treating the child of a widowed tenant differently from the child of a divorced tenant can be met simply by the observation that the differential treatment is clearly not motivated only, or even primarily, by housing policy. By creating the exception in section 88(2), Parliament is clearly intending to address a different policy objective relating to the adjustment of property in matrimonial proceedings."
Justification: the evidence
"Obviously, if reasons are proffered in defence of a decision which were not present to the mind of the decision-maker at the time that it was made, this will call for greater scrutiny than would be appropriate if they could be shown to have influenced the decision-maker when the particular scheme was devised. Even retrospective judgments, however, if made within the sphere of expertise of the decision-maker, are worthy of respect, provided that they are made bona fide."
i) The exception ensures that the succession rules do not act as a disincentive to spouses, particularly those in unhappy or abusive relationships, from getting divorced. A spouse need not feel pressured to remain in a marriage where there is domestic abuse simply to avoid triggering a succession.
ii) By providing that the exception is confined to a court-ordered assignment the legislation ensures that there is a fact-sensitive discretionary decision by a court; and a considered judicial decision. Such a decision is qualitatively different from an automatic statutory succession.
iii) The intervention of the court is a safeguard against unjustified circumvention of the "one succession" rule.
"But the question is not whether the existing law is unfair and could be made fairer. Nor is it whether the existing law is the fairest means of pursuing the legitimate aim …. Rather, the question is whether the existing law pursues that aim in a proportionate manner. The Strasbourg jurisprudence does not insist that a state pursues a legitimate aim in the fairest or most proportionate way. It requires no more than that it does so in a way which is proportionate. There may be a number of ways in which a legitimate aim can be pursued. Provided that the state has chosen one which is proportionate, Strasbourg demands no more."
Lord Justice Bean:
Lord Justice Baker: