London Borough of Haringey v Simawi & Anor, Court of Appeal - Queen's Bench Division, October 19, 2018, [2018] EWHC 2733 (QB)

Resolution Date:October 19, 2018
Issuing Organization:Queen's Bench Division
Actores:London Borough of Haringey v Simawi & Anor
 
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Case No: HQ15X03584

Neutral Citation Number: [2018] EWHC 2733 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 19 October 2018

Before :

MR JUSTICE MURRAY

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Between :

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Mr Sam Phillips (instructed by LB Haringey, Legal Services) for the Claimant

Mr Toby Vanhegan and Ms Hannah Gardiner (instructed by Burke Niazi Solicitors) for the Defendant

Mr Ben Lask (instructed by Treasury Solicitor) for the Interested Party

Hearing dates: 2 and 3 October 2018

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JudgmentMr Justice Murray :

1. Mr Mukhlis Simawi, the defendant in these proceedings, is seeking declaratory relief in relation to the ``one succession rule'' set out in sections 87-88 of the Housing Act 1985. He asks that the Court either:

i) exercise its power under section 3 of the Human Rights Act 1998 (``the 1998 Act'') to ``read down'' or interpret sections 87-88 of the Housing Act 1985 in the manner for which he contends, as discussed further below; or

ii) declare under section 4 of the 1998 Act that sections 87-88 of the Housing Act 1985 are incompatible with the rights and fundamental freedoms (``the Convention rights'') in article 14 in conjunction with article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (``the Convention'') as set out in Schedule 1 to the 1998 Act.

2. This matter arises out of a claim brought by the London Borough of Haringey (``LB Haringey'') for possession of a two-bedroom maisonette at 25 Chettle Court, Ridge Road, London N8 9NU (``the Property''). The original claim for possession was issued in the Clerkenwell & Shoreditch County Court on 3 June 2014. The defendant defended the claim on two grounds, namely, that:

i) the one succession rule is incompatible with articles 14 and 8 of the Convention (``Ground 1''); and

ii) LB Haringey's decision not to grant a discretionary tenancy to Mr Simawi was unlawful, inter alia, by reason of LB Haringey's failure correctly to apply its own policy (``Ground 2'').

3. On 21 October 2014, District Judge Manners made a possession order. On 19 November 2014 Mr Recorder Cohen QC granted permission to appeal, and on 3 July 2015 Mr Recorder Bowdery QC allowed the appeal. In light of Ground 1, by order dated 4 August 2015 District Judge Bell transferred the claim to the High Court. By order dated 26 June 2016 Mr Justice Singh vacated the trial listed for a window in July 2016 and ordered that the Crown be notified of Mr Simawi's application for a declaration of incompatibility, as required by CPR 19.4A.

4. At a hearing on 25-26 October 2016 Mr Justice Supperstone heard submissions from each of LB Haringey and Mr Simawi on Ground 1 and Ground 2. Mr Simawi succeeded on Ground 2. Accordingly, LB Haringey's decision was unlawful, and the claim for possession fails. Mr Simawi, however, continues to pursue Ground 1, seeking the relief I have described above. On 10 November 2016 Supperstone J, noting that it did not appear that Singh J's order of 26 June 2016 had been served on the Crown, ordered that it be served on the Government Legal Department for the Secretary of State for Communities and Local Government and directed that, if the Secretary of State gave notice of his intention to be joined as a party to the proceedings, that he had permission to file a position statement by 4:00pm on Friday, 9 December 2016.

5. On 27 January 2017 Supperstone J made an order that the Secretary of State be joined to the proceedings as an interested party and that the Secretary of State serve a position statement on the claimant and defendant forthwith. On 7 September 2017 Supperstone J ordered that there be a hearing to determine whether the Ground 1 issue was ``academic'' and, if not, for further directions to be made for the conduct of the case. By consent order dated 7 November 2017 the parties recorded their agreement that if Mr Simawi were offered and accepted a new secure tenancy, Ground 1 would become academic, and if he refused to accept a new secure tenancy, it would not become academic.

6. At a hearing before Mr Justice Nicklin on 8 February 2018, Ground 1 remained ``live'' (that is, not academic) as a new secure tenancy had not been offered to and accepted by Mr Simawi. Directions were agreed at the hearing for the service of evidence and skeleton arguments, with a hearing for up to two days fixed for 2 October 2018. Nicklin J was also asked to determine whether the hearing on 2 October 2018 should go ahead even if Ground 1 became academic at some stage. The defendant urged Nicklin J to make such an order, the issue being one of public importance. LB Haringey and the Secretary of State opposed the making of the order. In a considered judgment handed down on 19 February 2018, Nicklin J concluded that the circumstances were exceptional and that Ground 1 raises a real point of some general importance potentially affecting a significant number of people, possibly for years to come: LB Haringey v Simawi [2018] EWHC 290 (QB). He therefore made an order that the hearing on 2 October 2018 should proceed even if the claim between LB Haringey and Simawi was otherwise resolved. This is my judgment in relation to Ground 1 as considered at that hearing.

Background facts

7. Mr Simawi was born on 2 February 1969. By an agreement dated 25 July 1994, LB Haringey granted to his parents, Mr Aziz Simawi and Mrs Fatima Hussein, a joint secure tenancy of the Property, which commenced on 8 August 1994. In June 2001 Mr Aziz Simawi passed away. By an agreement dated 28 January 2002, Mrs Hussein was recognised as the sole tenant by succession from 11 June 2001. On 27 October 2013 Mrs Hussein passed away.

8. On 10 December 2013 LB Haringey served a Notice to Quit, expiring on 13 January 2014, in respect of the Property.

9. Mr Simawi applied for a discretionary tenancy. LB Haringey refused the application, setting out in a letter dated 31 March 2014 as their principal reason that the evidence provided did not corroborate a continuous five years residence at the Property. In a separate letter dated the same day, LB Haringey advised Mr Simawi that he was occupying the Property without their permission, and that he must therefore leave the Property immediately, failing which legal proceedings to evict him would be taken without further notice.

Sections 87 and 88 of the Housing Act 1985

10. Sections 87 and 88 of the Housing Act 1985 as in effect at the relevant time for the purposes of this case were:

``87. Persons qualified to succeed tenant.

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

(b) he is another member of the tenant's family and has resided with the tenant throughout the period of 12 months ending with the tenant's death;

unless in either case, the tenant was himself a successor, as defined in section 88.

88. Cases where the tenant is a successor.

(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, &c.) is a successor only if the other party to the marriage was a successor.''

11. Nicklin J helpfully commented on these provisions at [6] to [9] of his judgment in this case:

``6. The effect of ss.87-88 HA 1985 is, so far as material:

i) Section 87 identified the persons who were qualified to succeed a secure tenant pursuant to s.89. It provided that a person was qualified to succeed a secure tenant if he occupied the dwelling-house as his only or principal home at the time of the tenant's death and (a) he was the tenant's spouse or civil partner; or (b) he was another member of the tenant's family (as defined in s.113) and had resided with the tenant throughout the period of 12 months ending with the tenant's death, unless, in either case, the tenant was himself a successor, as defined in s.88.

ii) Section 88 defined the circumstances in which the tenant was himself a successor. It provided that a person in whom a secure tenancy had vested on the death of a previous tenant was himself a successor (s.88(1)), but that a person to whom a secure tenancy had been assigned following a breakdown in marriage was not (unless the other party to the marriage was a successor) (s.88(2)).

7. Section 160 of the Localism Act 2011 (`LA 2011') inserted a new s.86A into the HA 1985. The effect of s.86A is to limit the statutory right of...

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