CA-2024-002756 - [2025] EWCA Civ 1038

It is not in dispute that articles 8 of the European Convention on Human Rights (ECHR) (“Everyone has the right to respect for … his home”) and 14 (“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex … or any other status”) are both engaged.

Both parties were content to adopt Lord Reed’s summary of principle in R (SC and others) v Secretary of State for Work and Pensions [2021] UKSC 26, [2022] AC 223 at [37]:

“The general approach adopted to article 14 by the European court has been stated in similar terms on many occasions, and was summarised by the Grand Chamber in the case of Carson v United Kingdom (2010) 51 EHRR 13, para 61 (“Carson”). For the sake of clarity, it is worth breaking down that paragraph into four propositions:

(1)

“The court has established in its case law that only differences in treatment based on an identifiable characteristic, or ‘status’, are capable of amounting to discrimination within the meaning of article 14.”

(2)

“Moreover, in order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations.”

(3)

“Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.”

(4)

“The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background.””

It is not always necessary to answer these questions separately and sequentially. The real question is whether there is enough of a difference between the complainant and a comparator to justify different treatment; and that, in turn requires the court to consider whether the different treatment pursues a legitimate aim and whether the means chosen are proportionate: see R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37, [2006] 1 AC 173 at [3] (Lord Nicholls); [29] to [33] (Lord Hoffmann); [43] to [44] (Lord Rodger); [68] (Lord Walker); [97] (Lord Carswell). Lord Reed observed in SC at [71]:

“I would add that the issue of “status” is one which rarely troubles the European court. In the context of article 14, “status” merely refers to the ground of the difference in treatment between one person and another. Since the court adopts a stricter approach to some grounds of differential treatment than others when considering the issue of justification, as explained below, it refers specifically in its judgments to certain grounds, such as sex, nationality and ethnic origin, which lead to its applying a strict standard of review. But in cases which are not concerned with so-called “suspect” grounds, it often makes no reference to status, but proceeds directly to a consideration of whether the persons in question are in relevantly similar situations, and whether the difference in treatment is justified.”

The question whether Ms Abdelrahman has an “other status” for the purposes of article 14 was, however, argued in skeleton arguments; and I should therefore deal with it at least briefly. As Lord Reed observed both in the quoted summary and also at [68] to [71] status cannot be defined solely by the difference in treatment complained of: it must be possible to identify a ground for the difference in treatment in terms of a characteristic which was not merely a description of the difference in treatment itself. 

The argument for Ms Abdelrahman is that she has a “status” in that she is the biological child of one of two adults who were in an intimate relationship but were not married to each other, in contradistinction with a biological child of an adult who is married to (or in a civil partnership with) their partner.

In Re McLaughlin [2018] UKSC 48, [2018] 1 WLR 4250 the Supreme Court held that the Social Security Contributions and Benefits (Northern Ireland) Act 1992 section 39A was incompatible with ECHR article 14 read with article 8, insofar as it precluded any entitlement to widowed parent’s allowance by a surviving unmarried partner of a deceased person. Lady Hale said at [31]:

“It is well established both in Strasbourg and domestically that not being married can be a status just as being married can be. In Yigit v Turkey, for example, the Grand Chamber held that “the absence of a marriage tie between two parents is one of the aspects of personal status which may be a source of discrimination prohibited by article 14”: para 79. In In re G (Adoption: Unmarried Couple) [2009] AC 173, the House of Lords held that being unmarried was a status for the purpose of deciding whether their inability to adopt was unjustified discrimination under article 14.”

I would accept, therefore, that Ms Patel and Mr Seales had a “status” for the purposes of article 14. Does that confer a relevant status on Ms Abdelrahman?

Ms Davies relies on (Application No 3976/05) Yigit v Turkey (2011) 53 EHRR 25. In that case the applicant married her partner in a religious ceremony and had six children. Her partner died without an official civil ceremony taking place. Following his death, she applied to a retirement pension fund to award a survivor’s pension and health-insurance cover to herself and her daughter based upon the deceased’s entitlement. The fund refused. She complained that the refusal amounted to unlawful discrimination. The Grand Chamber held that there had been no violation of article 14 taken together with article 1 of the First Protocol or article 8. In the course of their judgment the Grand Chamber said at [79]:

“In that regard the Court has ruled in previous cases that children born outside marriage were discriminated against compared to those born within a civil marriage, as the difference in treatment was based solely on the former’s “status” as children born out of wedlock. The Court has adopted similar reasoning in finding that a refusal to grant access rights in respect of a child on the sole ground that the child was born out of wedlock was discriminatory. Likewise, the Court considers that the absence of a marriage tie between two parents is one of the aspects of personal “status” which may be a source of discrimination prohibited by art.14.”

I am willing to assume (without deciding) that the “status” of Ms Patel and Mr Seales also confers “status” on Ms Abdelrahman. But as we shall see, that may not matter.

The second question is whether there is a difference in treatment between a person with Ms Abdelrahman’s status and a person in an analogous or relevantly similar situation. The comparator here is the biological child of one of two persons in an intimate relationship who are married (or in a civil partnership). The discrimination alleged must be “on the ground” of that status. Islington argued that any difference in treatment is not on the ground of Ms Abdelrahman’s status but on the ground of the arrangements between her mother and Mr Seales. Their choice not to marry means that Ms Abdelrahman is not in an analogous situation to a person whose biological parent did decide to marry or enter a civil partnership.

I do not consider that the fact that the arrangements between Ms Patel and Mr Seales are the cause of the differential treatment is of itself fatal to this part of Ms Abdelrahman’s case. A line of cases in the European Court of Human Rights, culminating in the decision of the Grand Chamber in (Application 2054/14) Sali v Greece (2019) 69 EHRR 2 recognises that discrimination on the basis of another person’s status may fall within the scope of article 14. As the court put it at [134]:

“Only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Fábián, cited above, § 113 and the references therein). In this context, the Court reiterates that the words “other status” have generally been given a wide meaning in its case-law (see Carson and Others, cited above, § 70) and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent (see Clift v the United Kingdom, no. 7205/07, §§ 56-59, 13 July 2010). For example, a discrimination issue arose in cases where the applicants’ status, which served as the alleged basis for discriminatory treatment, was determined in relation to their family situation, such as their children’s place of residence (see Efe v Austria, no. 9134/06, § 48, 8 January 2013). It thus follows, in the light of its objective and nature of the rights which it seeks to safeguard, that Article 14 of the Convention also covers instances in which an individual is treated less favourably on the basis of another person’s status or protected characteristics (see Guberina v Croatia, no. 23682/13, § 78, ECHR 2016 and Škorjanec v Croatia, no. 25536/14, § 55, 28 March 2017 and also Weller v Hungary, no. 44399/05, § 37, 31 March 2009).”

Simler LJ made a similar point in Dudley MBC v Mailley [2023] EWCA Civ 1246, [2024] 1 WLR 1837 at [30]:

“Likewise, it is not in doubt that article 14 of the Convention also covers instances in which an individual is treated less favourably on the basis of another person’s status or protected characteristics: see Guberina v Croatia (2016) 66 EHRR 11 (referred to above).”

Nevertheless, the fact that Ms Patel and Mr Seales chose not to marry has important consequences. Its principal relevance is to the question of the justification for any differential treatment. In Burden v United Kingdom (Application No 13378/05) (2008) 47 EHHR 38 two sisters, who had lived together for many years, complained that when one of them died, the survivor would be required to pay inheritance tax on their home, whereas a surviving spouse or civil partner would not. The Grand Chamber held that their complaint failed. In the course of its judgment, the court said:

“Moreover, the Grand Chamber notes that it has already held that marriage confers a special status on those who enter into it. The exercise of the right to marry is protected by Art.12 of the Convention and gives rise to social, personal and legal consequences. In Shackell, the Court found that the situations of married and unmarried heterosexual cohabiting couples were not analogous for the purposes of survivors’ benefits, since “marriage remains an institution which is widely accepted as conferring a particular status on those who enter it”. The Grand Chamber considers that this view still holds true.”

The Grand Chamber went on to say at [65]:

“As with marriage, the Grand Chamber considers that the legal consequences of civil partnership under the 2004 Act, which couples expressly and deliberately decide to incur, set these types of relationship apart from other forms of cohabitation. Rather than the length or the supportive nature of the relationship, what is determinative is the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature.”

In Yigit v Turkey the court said at [72]:

“With regard to art 12 of the Convention, the Court has already ruled that marriage is widely accepted as conferring a particular status and particular rights on those who enter it. The protection of marriage constitutes, in principle, an important and legitimate reason which may justify a difference in treatment between married and unmarried couples. Marriage is characterised by a corpus of rights and obligations that differentiate it markedly from the situation of a man and woman who cohabit. Thus, states have a certain margin of appreciation to treat differently married and unmarried couples, particularly in matters falling within the realm of social and fiscal policy such as taxation, pensions and social security.”

In my judgment it follows from this that states also have a wide margin of appreciation to treat the children of unmarried couples (or couples not in a civil partnership) differently from the children of married couples (or civil partners). This conclusion feeds into the third and fourth questions.

I can take the third and fourth questions together because the answer to the fourth question has a bearing on the answer to the third. We are in the realm of public housing. In R (Turley) v Wandsworth London Borough Council [2017] EWCA Civ 189, [2017] HLR 21 this court held that where a provision relating to succession to secure tenancies had to be justified, there was no difference in principle between access to social housing and access to welfare benefits. Both were subject to the same test. The test that the court went on to apply was to ask whether the impugned measure was “manifestly without reasonable foundation”. That is the same test that this court approved in Wall. In Haringey London Borough Council v Simawi [2019] EWCA Civ 1770, [2020] PTSR 702, having considered the decision of the Supreme Court in R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21, [2019] PTSR 1072, this court adopted the same test. Although more recent cases, especially SC, have considered a more nuanced test, I consider that, despite the obiter observations of Simler LJ in Dudley at [57] and [58], the test of “manifestly without reasonable foundation” continues to apply where the impugned measure is in the field of welfare benefits (including the provision of social housing) and the differential treatment is not based on a “suspect” ground. As Lord Reed said in SC at [158]:

“… it remains the position that a low intensity of review is generally appropriate, other things being equal, in cases concerned with judgments of social and economic policy in the field of welfare benefits and pensions, so that the judgment of the executive or legislature will generally be respected unless it is manifestly without reasonable foundation.” (Emphasis added)

I turn then to the third question. Although Ms Davies’ skeleton argument suggested that the policy did not pursue a legitimate aim, this point was rightly not pressed in oral argument. It is unarguable. As I said in Simawi at [56]:

“Public sector housing is a scarce resource. Since 1980, when secure tenancies were first introduced (together with the right to buy) the proportion of households occupying public sector rented housing, and the number of dwellings available to let on that basis, has substantially declined. Housing authorities select tenants from long waiting lists on the basis of their housing needs. Where a person is entitled to succeed to a secure tenancy, they do so by virtue of their relationship to the deceased tenant rather than as a result of any particular housing need.”

In Wall Ward LJ made a similar point at [32]:

“… the fact remains that council housing is a precious and limited resource, the management of which is vested in and is to be exercised by the local housing authority by virtue of section 21(1) of the 1985 Act. It is for the authority concerned to decide who is to be qualified to be allocated housing accommodation by it and the allocation schemes determine the priorities and procedures to be followed in allocating housing accommodation.”

A desire to allocate public sector housing on the basis of housing need rather than on the basis of a relationship with a deceased tenant is, in my judgment, plainly a legitimate aim.

There have been a number of cases in which the succession regime has been considered in the context of Convention rights. I take as representative what Simler LJ said in Dudley at [63]:

“It follows that the broad aim in limiting succession (and assignment) rights to qualified successors, is to strike a balance between the interests of different groups: members of the deceased tenant’s family who have lived in the dwelling house as their home and are recognised as having some limited succession rights; those on the housing waiting list recognised as being in need of housing; and the interest of the local authority in allocating its housing stock in a fair, efficient and effective way. Inevitably, the operation of succession and assignment rights has the effect of removing a dwelling house from the pool of housing stock, preventing its allocation to someone with greater housing needs, and that has been held to justify the one succession rule (see Gangera [2003] HLR 68 and Simawi [2020] PTSR 702 for example). It seems to me to follow that it also provides justification for restricting those who qualify as successors and when and how that is done.”

So the final question is whether Islington’s policy is “manifestly without reasonable foundation”. HHJ Bloom concluded at [75] that Islington’s policy was “plainly objectively justified”. She reasoned as follows:

“There were, of course, or there could have been, other policies or approaches that could have been adopted, but this is one that is objectively reasonable and proportionate. The Council have to allocate housing across the borough. Resources are stretched. When a tenant dies, they are willing to offer discretion to those outside the partner of the deceased, but the pool is prescribed. It is not intended to be a wide pool, but a narrow pool defined by the relationship of the tenant to the applicant. It is extended beyond blood relations to stepsiblings, but those stepsiblings are only those who are the children of a person who is married or in a civil partnership with the deceased. That is the clear policy. It may not be expressly spelled out, but it reflects the usual understanding of stepchild. It requires no investigation into the nature of the breadth of the relationship. It is quick and easy to resolve. … [I]t is entirely explicable and objectively reasonable for [the housing authority] not to want to enquire into the nature of another relationship which may be some time in the past, either because one of the parents of the applicants has died or the relationship may have terminated many years before.”

Where the first instance court has assessed the proportionality of an impugned measure, such as a housing allocation policy, the scope of an appeal court to intervene is limited. In R (Z) v Hackney LBC [2020] UKSC 40, [2020] 1 WLR 4327 at [56] Lord Sales quoted a lengthy extract from my judgment in the court below, which he endorsed at [74]. He said:

“I would endorse the observations of Lewison LJ at paras 63–68 (quoted at para 56 above) about the proper approach for an appellate court when reviewing a finding of proportionality or disproportionality of a measure such as AIHA’s [the relevant housing association] allocation policy. Mr Wise did not suggest this approach was wrong. Since the Divisional Court gave itself a correct self-direction as to the test to be applied, its conclusion that AIHA’s allocation policy is a proportionate means of pursuing the legitimate aims identified can only be set aside if the appeal court comes to the view that its conclusion was wrong in the relevant sense. It is not sufficient that an appellate court might think it would have arrived at a different conclusion had it been considering the matter for the first time.”

Whether an assessment of proportionality is “wrong in the relevant sense” entails demonstrating that the first instance judgment contains 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. But it is not enough simply to demonstrate an error or flaw in reasoning. It must be such as to undermine the cogency of the conclusion. Accordingly, if there is no such error or flaw, the appeal court should not make its own assessment of proportionality: Z at [56].

Where, on the other hand, matters of general principle are in issue or the question concerns the Convention compatibility and proportionality of general rules set out in legislation, it is the proper function of the appellate court to determine the question of proportionality for itself without deferring to the assessment made by the lower court, even if that court has directed itself correctly and its decision cannot be said to be unreasonable: Re JR123 [2025] UKSC 8, [2025] 2 WLR 435 at [36]. 

This case concerns Islington’s allocation policy, and in my judgment falls within the scope of what was said in R (Z) v Hackney (which concerned a housing allocation policy), rather than JR123, even though the policy is based on section 113. The proportionality of section 113 itself is not in issue, not least because it does not apply to Mr Seales’ tenancy, and therefore does not directly affect Ms Abdelrahman’s Convention rights.

In her skeleton argument Ms Davies did not identify any ground on which an appeal court could hold that the judge’s assessment of proportionality was wrong in the relevant sense. Rather, she argued that Islington should have adduced evidence to show that the discrimination was justified, and that, in the absence of such evidence the judge was wrong to find that the policy was ECHR-compliant. Ms Davies, acknowledged however, in oral argument, that any judge sitting in the county court at Central London did not need evidence to know that there is a severe shortage of public sector housing in London and that there is intense pressure on local housing authorities’ waiting lists. She alluded to my statement in Alibkhiet v Brent LBC [2018] EWCA Civ 2742, [2019] HLR 15 at [1]:

“You would need to be a hermit not to know that there is an acute shortage of housing, especially affordable housing, in London…”

As Lord Walker observed in Carson at [69]:

“Although the phrase “burden of proof” is often used, the court (whether here or in Strasbourg) is in these cases concerned mainly with a broad evaluation of competing private and public interests, and rarely has to make a detailed assessment of the credibility and cogency of factual evidence…”

In Michalak it was argued that the trial judge should not have made an order for possession without evidence justifying the making of such an order on one of the grounds set out in article 8 (2) of the ECHR. This court rejected that argument. Brooke LJ said at [46]:

“In my judgment there was no need for any such evidence to be placed before the judge. The objective justification for the possession order lies in the statutory arrangements devised by Parliament for identifying who may succeed to secured tenancies and who may not following the death of a secure tenant. There is ample Strasbourg authority for the proposition that appropriate justification may be derived from a statutory scheme, and that it need not always be demonstrated on a case-by-case basis.”

Similarly in Wall this court held, without any specific evidence, that the exclusion of a foster child from the category of persons entitled to succeed to a secure tenancy was justified. In so holding the court endorsed the observations of Moses J in R (Gangera) v Hounslow London Borough Council [2003] HLR 1028 at [23]:

“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.”

In Dudley Simler LJ said at [61]:

“… there will be many cases where the aims and reasons for an impugned legislative provision (particularly where it is in primary legislation) can be gleaned from a proper understanding of the provision in question (including the mischief it is intended to address) in the context of the legislative scheme read as a whole.”

What is true of Parliament in enacting section 113 is equally true of Islington adopting a policy based on section 113. Quite apart from anything else, Islington’s policy is more generous to survivors than is required by the current statutory scheme embodied in section 86A. In other words, it has struck the balance in a way that is more favourable than the statutory scheme to family relationships as compared with housing need. HHJ Bloom made this point at [73]; and I agree with her. To argue that a policy should be even more favourable to family relationships than to housing need is, in my judgment, over-ambitious. It is an argument I reject.

In the course of her oral submissions Ms Davies said that the judge’s evaluation of proportionality was flawed. Her first point was that the judge had not found that Ms Abdelrahman had relevant “status”. But that, to my mind, was a non-point because the judge’s assessment of proportionality plainly proceeded on the assumption that Ms Abdelrahman did have a relevant status (as she said in terms), otherwise the question of proportionality would not have arisen. Second, she said that the judge had failed to take into account the fact that the property had been Ms Abdelrahman’s home for many years. I find it difficult to accept that the lawfulness of an allocation policy on succession can depend on how long the putative successor has lived in the property, given that there is a residence requirement of 12 months; and that the policy is intended to operate across the board. Nor, as far as I can tell, was this a point that was put before the judge. Third, she said that the fact that Islington did not want to undertake potentially time-consuming investigations was irrelevant. In a case where, for example, it was in dispute whether someone had in fact lived in the property for the requisite period of 12 months; or where it was in dispute whether two people had lived together as if they were a married couple, Islington would have to undertake enquiries. That may be true, but I cannot see that a desire to minimise the need for such enquiries in other cases is irrelevant to the question whether a policy is a proportionate means of advancing a legitimate aim. Fourth, she said, the fact that Ms Patel and Mr Seales chose not to marry was not Ms Abdelrahman’s decision, and that she should not suffer because of the decision of her mother and Mr Seales. She pointed out that in Re McLaughlin differential treatment of children of married as opposed to unmarried couples was not justified. But that was in the context of the payment of widowed parent’s allowance where the payment existed because of the responsibilities of the deceased and the survivor towards their dependent children whose needs were the same whether their parents were married or not. As Lady Hale recognised at [43] it did not follow that the exclusion of unmarried couples from a particular benefit would always infringe Convention rights. In the same case at [52] Lord Mance recognised that a policy in favour of marriage or civil partnership may constitute sufficient justification where children are not involved but cannot do so “in relation to a benefit targeted at the needs and well-being of children.” In the present case there is an obvious tension (referred to above) between the allocation of public sector housing on the basis of housing need and the allocation of that same housing on the basis of a relationship between the putative successor and the deceased tenant. The two situations are not comparable. In addition, as Nugee LJ pointed out in argument, with the exception of one’s spouse or civil partner, one does not choose one’s family relations, even those who appear on the closed list in section 113.

I do not consider that any of the supposed flaws in the judge’s assessment of proportionality undermine the cogency of her conclusion.

Islington’s policy is what has been described as a “bright line” rule. The formulation of “bright line” rules, particularly where there is a need to allocate, as fairly as possible, the scarce stock of social housing is unobjectionable, and in conformity with the ECHR, provided that the criteria are not arbitrary or discriminatory: Bah v United Kingdom [2012] HLR 12. Similarly in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15, [2008] 1 AC 1312, Lord Bingham said at [33]:

“[L]egislation cannot be framed so as to address particular cases. It must lay down general rules …. A general rule means that a line must be drawn, and it is for Parliament to decide where. The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial.”

In the specific context of succession rights, Simler LJ said in Dudley at [64]:

“Also inherent in the legislative scheme are bright-line rules aimed at ensuring that succession legislation can be operated and applied by tenants, their families and local authorities with certainty, without extensive and/or time-consuming investigation, and without creating difficult conflicts of interest.”

In my judgment, therefore, there is no ground on which an appeal court could interfere with the judge’s assessment of Islington’s policy as ECHR-compliant.