The Court of Appeal held that the fact that a secure tenancy assigned to a person on divorce gives rise to succession rights; whereas a tenancy vested on death does not, does not breach Article 14 of European Convention on Human Rights when read with Article 8.
Mr Simawi was unable to succeed to his mother’s secure tenancy because she had become the sole tenant as a result of his father’s death. Mr Simawi argued that if his mother had become the sole tenant as the result of an assignment of the tenancy on divorce, he would have been eligible to succeed to the secure tenancy. This was characterised by counsel for Mr Simawi as the death-divorce dichotomy. It was not a challenge to the one succession rule.
It was common ground that Article 14 applied because Article 8 was engaged because it was a possession claim. Therefore, there were three issues that had to be dealt with by the Court of Appeal.
First, whether the difference in treatment was on the ground of status. Lewison LJ held at  “to the extent that Mr Simawi has been discriminated against, that discrimination has not been discrimination on the ground of his ‘other status’.” Furthermore, he held that the succession rules do not amount to indirect discrimination on the basis that women benefit from the succession rules and are more likely to benefit from such rights and assignments under section 24 Matrimonial Causes Act 1973.
Secondly, whether the difference in treatment was between two persons in an analogous situation. This issue is not addressed in the judgment of the Court.
The Court’s conclusions on status and discrimination were sufficient to dispose of the appeal but the Court went on to consider the final question of whether there was an objective justification for the difference in treatment. It was held that when considering whether there is a justification for the treatment, the correct test to apply in this case was whether the justification was manifestly without reasonable foundation. It was held that the difference was not manifestly without reasonable foundation and was therefore justified in any event.
The case concerns secure tenancies granted before 1 April 2012. As it currently stands, sections 87-88 of the Housing Act 1985 will continue to operate in that they provide an exception to the one succession rule. Permission to appeal to the Supreme Court has been sought.
Articles About The Case
Nearly Legal - Succession and discrimination – death or divorce
Local Government Lawyer - Court of Appeal agrees to hear ‘second succession’ case