Neutral Citation Number: [2018] EWHC 290 (QB)

Case No: HQ15X03584

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 19 February 2018

Before :

THE HONOURABLE MR JUSTICE NICKLIN

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Between :

The Mayor and Burgesses of the
London Borough of Haringey / Claimant
- and –
Mulkhis Simawi / Defendant
-and –
The Secretary of State for Communities and Local Government / Interested Party

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Sam Phillips (instructed by Legal Services, London Borough of Haringey) for theClaimant

Toby Vanhegan (instructed by Burke Niazi Solicitors) for the Defendant

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

Hearing date: 8 February 2018

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Judgment Approved

The Honourable Mr Justice Nicklin:

  1. This claim was issued in the Clerkenwell & Shoreditch County Court on 3June 2014. It started life as a simple claim for possession of a 2-bedroom maisonette in Hornsey (“the property”). The Defendant’s father had been granted a secure weekly tenancy of the property by the Claimant on 8 August 1994. The Defendant’s father died in June 2001. His wife, the Defendant’s mother, succeeded to his secure tenancy on his death pursuant to s.87 Housing Act 1985 (“HA 1985”). The date of succession was 11 June 2001. The property was the family home.
  2. On 27 October 2013, the Defendant’s mother died. On 1 November 2013, the Defendant contacted the Claimant to notify it of the death of his mother and to request that the tenancy of the property be transferred to him. He based his claim on the fact that, immediately prior to his mother’s death, he had been occupying the property as his only or principal home for over 10 years. The Claimant refused, relying upon the terms of ss.87-88 HA 1985, on the ground that his mother had herself been a successor under s.87 HA 1985 (“the no second succession rule”).
  3. Having refused to allow the Defendant to succeed the tenancy, the Claimant served a notice to quit on the Defendant on 10 December 2013. The Defendant did not surrender possession and, ultimately, on 3 June 2014, the Claimant commenced possession proceedings which the Defendant defended.
  4. In his Defence, the Defendant claimed that he was the secure tenant of the property by succession contending that the no second succession rule contained in ss.87-88 HA 1985 was incompatible with the Human Rights Act 1998, Schedule 1, Articles 8 and 14.

Statutory Scheme

  1. At the relevant time, the relevant provisions of the HA 1985 were:

s.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 s.88.

s.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 s.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 s.86 (periodic tenancy arising on ending of terms certain) and the first tenancy there mentioned was granted to another person or jointly to him or another person, or

(d) he became a tenant on the tenancy being assigned to him (but subject to subsections (2) and (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.

  1. 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)).

  1. 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 succession to spouses and civil partners.[1] s.86A(3) continues to limit that right to one statutory succession. Other family members, such as children, no longer enjoy a right of succession. However, s.86A applies only to England and only in relation to secure tenancies granted on or after 1 April 2012 (“new STs”).[2] Secure tenancies granted before 1 April 2012 (“oldSTs”) remain governed by s.87 as described at paragraph 6(i) above. The LA 2011 did not amend s.88.
  2. When brought into force, the Housing and Planning Act 2016 (“HPA 2016”) will introduce further amendments to the HA 1985. So far as material, schedule 8 renumbers s.86A as s.86G and inserts a new subsection (8): paragraph 3 of schedule8. The effect of s.86G(8), once it comes into force, will be to align the succession criteria for old and new STs. Thus, the removal of the statutory right of succession from other family members such as children will apply to old STs as well as new STs.[3] However, this change will apply only in cases where the tenant dies after the amendment comes into force: paragraph 15 of schedule 8.
  3. A commencement date for schedule 8 of the HPA 2016 has not yet been appointed.

Alleged Incompatibility

  1. The grounds of the alleged incompatibility were set out in the Defence. Insummary, it was contended that the relevant sections of the Housing Act treated differently a tenant whose partner died and a tenant whose marriage/civil partnership with his/her partner had broken-down. In the former case, the tenant was treated as a successor under ss.87-88 of the Act. In the latter case, if the tenancy was assigned under a property assignment order made in matrimonial proceedings then the person remaining in resident would become a tenant de novo. In consequence, the Defendant contends that a child who would otherwise satisfy the succession requirements of the Housing Act is treated less favourably if his/her parent was a sole tenant because of death than as a result of relationship breakdown.
  2. Paragraphs 21 to 23 of the Defence contend:

21.The Defendant asserts that:

(i)whether a person becomes a sole tenant through death or assignment after relationship breakdown is a status for the purposes of Art 14 of Schedule 1 of the Human Rights Act 1998; and

(ii)… the potential successor children of such persons are in an ‘analogous position’ with each other for the purposes of Art 14 of Schedule 1 of the Human Rights Act 1998; and

(iii)there is no sensible justification for the less favourable treatment accorded to successors by death and their putative successor children; and therefore

(iv)the ‘no second succession rule’ is incompatible with Art 14 and Art 8 of Schedule 1 of the Human Rights Act 1998.

21a.Further, the distinction drawn in s.88 is indirectly discriminatory on gender grounds. The distinction is prima facie gender neutral. However, the distinction adversely affects women and their putative successors relative to men. This is because women as a class live longer than men, and so are statistically more likely to become sole tenants as a result of widowhood rather than divorce. Sole tenancy arising consequent upon divorce is gender neutral – as obviously both parties to the relationship are alive. However, because of women’s greater longevity, the surviving sole tenant consequent upon widowhood is more likely to be a woman than a man.

22.The Defendant further avers that it is possible for the court – in accordance with the Human Rights Act 1998 s.3 – to lend the Housing Act 1988 (sic) ss.87-88 a meaning which is compatible with Art 14 of Sch 1 of the Human Rights Act 1998 by, for example, reading the italicised words below into s.88(e):

(e)he became the tenant on the tenancy being vested in him on the death of the previous tenant unless he/she was the spouse of the previous tenant and the previous tenant was not him/herself a successor to the tenancy or…

23.If the court accepts that the above cited provisions of the Housing Act 1985 create a legal position which is incompatible with Art 14, but that it is not possible per the Human Rights Act 1998 s.3 to construe these provisions in a Convention-Rights compatible manner, then this matter should stand adjourned so that the Defendant may seek a declaration of incompatibility in the High Court per the Human Rights Act 1998 s.4.

  1. This was the first ground upon which the Defendant resisted the claim for possession (“Ground 1”). The Defendant also contended that the Council’s decision not to grant a discretionary tenancy to the Defendant was unlawful. That second ground is not relevant for the issue I have to decide.
  2. In light of the incompatibility issue, by an order dated 4 August 2015, the claim was transferred to the High Court. Proceedings continued in the High Court until, on 27 January 2017, Supperstone J made an order that the Interested Party be joined to the proceedings. On 7 September 2017, following consideration of the Interested Party’s position statement, Supperstone J ordered that there be a hearing to determine (1)whether the Ground 1 issue is ‘academic’; and, if it is not, (2)the further directions that should be made for the conduct of the case. As recorded in the Order of 8 November 2017, the parties were agreed that Ground 1 would become academic if the Claimant were to offer (and the Defendant to accept) a new secure tenancy. If the Claimant refused to offer a new secure tenancy, Ground 1 would not become academic. The acceptance of a new tenancy by the Defendant would, of course, bring the claim for possession to an end and the incompatibility issue would become academic.
  3. At present, the issue is not academic, because a new secure tenancy has not been offered to and accepted by the Defendant. As a result, at the hearing before me, directions were agreed for the service of evidence and skeleton arguments and a hearing for up to 2 days was fixed for 2October 2018 before Supperstone J. The issue that I have been asked by the parties to determine is whether, if the claim does become academic at some stage between now and the hearing on 2 October 2018, the Court should nevertheless go on to determine it. The Defendant urges me to make such an order because of what he submits is the public importance of the point. The Claimant and Interested Party contend that no order should be made and that, if a secure tenancy is offered and accepted between now and the hearing on 2October 2018, the claim will be at an end in the ordinary way.

The resolution of ‘academic’ issues: the law

  1. All parties are agreed that the Court has a discretion to determine a dispute that has become academic. Mr Lask, for the Interested Party, contends that it is a narrow one and is to be exercised with caution. In R -v- Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450, 456-457 Lord Slynn said:

“… in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury -v- Millington (and the reference to the latter in rule 42 of the Practice Directions applicable to Civil Appeals (January 1996) of your Lordships' House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case.

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (butonly by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.

I do not consider that this is such a case. In the first place, although a question of statutory construction does arise, the facts are by no means straightforward and in other cases the problem of when a determination is made may depend on the precise factual context of each case. In this very case, the first issue is expressed to arise "On the facts of this case;" the second issue concerns the question whether the Secretary of State had any discretion to record and rescind his decision and whether the discretion was exercised rationally and fairly in the instant case.

In the second place, Mr. Pannick, on the basis of instructions from both the Home Office and the Department of Health and Social Security, told us that only in a few cases has this question arisen. In R -v- Secretary of State for the Home Department, Ex parte Karaoui, The Times, 27 March 1997, the issue was whether there was a record; the determination was quashed because there was no record. In R -v- Secretary of State for the Home Department, Ex parte Bawa (unreported), 27 October 1997 the claim was accepted by the Home Office after the trial judge's decision. In two other cases, applications are being made for judicial review, but leave has not yet been given. The unusual facts of the present case do not seem to provide a good basis for the matter to be raised as a general principle, the particular lis having gone.

This was not brought as a test case and in my view these factors outweigh any possible advantages for the legal aid board in dealing with this case which proceeded so far.”

  1. When it is submitted that the court is being asked to determine a point that has become ‘academic’ that means as between the individual litigants in the proceedings. It is ‘academic’ because the point does not need to be determined to resolve their dispute. The point may well not be ‘academic’ in a wider sense of having ramifications for other cases. For those cases, the point may be very real.
  2. Mr Lask submits that academic disputes should not be determined unless there are exceptional circumstances. He relies upon Silber J’s judgment in R(Zoolife) -v- Secretary of State for the Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin), and in particular [36]-[37]:

[36]… academic issues cannot and should not be determined by courts unless there are exceptional circumstances such as where two conditions are satisfied in the type of application now before the court. The first condition is in the words of Lord Slynn in Salem (supra) that “a large number of similar cases exist or anticipated” or at least other similar cases exist or are anticipated and the second condition is that the decision in the academic case will not be fact-sensitive. If the courts entertained academic disputes in the type of application now before the court but which did not satisfy each of these two conditions, the consequence would be a regrettable waste of valuable court time and the incurring by one or more parties of unnecessary costs.

[37]These points are particularly potent at the present time where the Administrative Court is completely overrun with immigration, asylum and other cases and where it would be contrary to the overriding objectives of the CPR for an academic case to be pursued. After all one of those overriding objectives is “dealing with a case justly [which] includes, so far as is practicable … (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases” (CPR Part 1.1) It is noteworthy that there have been a number of cases where the court has considered it appropriate to hear an academic issue but those cases, which often concerned statutory construction or the impact of the European Convention on Human Rights on English statutes, satisfied the two tests which I have set out in paragraph 36 above (see generally the examples given in R (on the application of B) v Dr SS, Dr AC and the Secretary of State for the Department of Health [2005] EWHC 86 (Admin) [47]).

  1. In Hamnett -v- Essex County Council[2017] 1 WLR 1155, the Court of Appeal summarised the relevant principles, citing Lord Slynn’s remarks in Salemand Lord Neuberger’s judgment in Hutcheson -v- Popdog Ltd (Practice Note) [2012] 1 WLR 782:

[33]In a case involving a public authority and raising a question of public law, the court has adiscretionto hear the appeal, even if by the time it is heard, there is no longer an issue to be decided which will directly affect the rights and obligations of the parties as between themselves: seeR -v- Secretary of State for the Home Department, Ex p Salem[1999] 1 AC 450, 456, per Lord Slynn of Hadley. However, as Lord Slynn went on to emphasise, at p.457, that discretion was to be exercised with caution: