LAW REPORT v 29 July 1997; Homosexual partner has no right in protected tenancy

Fitzpatrick v Sterling Housing Association Ltd; Court of Appeal (Lord Justice Waite, Lord Justice Roch and Lord Justice Ward) 23 July 1997

The surviving partner in a stable and permanent homosexual relationship could not claim succession rights under the Rent Acts in respect of premises of which the deceased partner was a protected tenant.

The Court of Appeal (Lord Justice Ward dissenting) dismissed the appeal against the decision of the West London County Court that Martin Fitzpatrick was not entitled to succeed to the tenancy of a flat in Ravenscourt Road, London W6.

Jan Luba (John Ford) for the appellant; Vivian Chapman (Belvederes) for the respondents.

Lord Justice Waite said that in 1976 the appellant had moved in to live with his partner in a flat of which the partner had become the statutory tenant in 1972. The two men had maintained a close, loving homosexual relationship until the partner's death in 1994.

The landlords were a charity providing families and individuals with accommodation at affordable rents. They did not, however, qualify as a Housing Association within the terms of the Housing Act 1985. They accordingly fell to be treated as private landlords subject to the Rent Acts. The appellant had applied to take over the tenancy of the flat, but the landlords were not prepared to agree.

Succession to a statutory or protected tenancy could only be obtained by a person who was in relation to the deceased tenant: (a) a spouse; (b) someone living with him or her as wife or husband; or (c) a member of his or her family residing with him or her in the dwelling-house at the time of and for a period of two years before the death: paragraphs 2 and 3(1) of Schedule 1 to the Rent Act 1977, as amended.

In the light of the decision in Harrogate Borough Council v Simpson (1984) 17 HLR 205 the court was bound to treat the phrase "living with him or her as wife or husband" as applying to heterosexual relationships only.

"Member of the family" was undefined. Case law had held it to be a term of wide import capable of being interpreted flexibly by the courts according to the social perceptions of the time as reflected through the eyes of the ordinary man or woman. There had been no previous decision on the question whether a surviving lesbian or gay partner of a deceased statutory tenant qualified for the status of "member of the family".

If endurance, stability, interdependence and devotion were the sole hallmarks of family membership, there could be no doubt about the case at all. The appellant and his partner had lived together for a longer period than many marriages endured. To adopt an interpretation of the statute that allowed all sexual partners, whether of the same or opposite sex, to enjoy the privilege of succession to tenancies protected by the Rent Acts would be consistent not only with social justice but also with the respect accorded by modern society to those of the same sex who undertook a permanent commitment to a shared life.

English law regarding succession to statutory tenancies was, however, firmly rooted in the concept of the family as an entity bound together by ties of kinship or marriage. The only relaxation had been a willingness to treat heterosexual cohabitants as if they were husband and wife. That was out of tune with modern acceptance of the need to avoid any discrimination on the ground of sexual orientation.

The law was, in short, arbitrary and discriminatory. The judge in the county court had nevertheless been right to resist the temptation to change a bad law by giving it a new linguistic twist. He had correctly acknowledged that such changes could only be made by Parliament. They were changes which would certainly need to be made, if Parliament were to fulfil its function of reflecting the spirit of our times.

As the law presently stood, however, notwithstanding the respect and sympathy to which the appellant was entitled, the appeal must be dismissed.

Kate O'Hanlon, Barrister