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House of Lords
Session 1998-99
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Judgments -- Fitzpatrick (A. P.) v. Sterling Housing Association Ltd.


  Lord Slynn of Hadley   Lord Nicholls of Birkenhead   Lord Clyde
  Lord Hutton   Lord Hobhouse of Wood-borough





ON 28 OCTOBER 1999


My Lords,

    Throughout this century Parliament has provided statutory protection for residential tenants and for certain persons with what can be called derived rights from those tenants. The categories of those persons have varied from time to time. Thus those persons were initially successors in title (sections 1(3) and 2(1)(d) of the Increase of Rent and Mortgage Interest (War Restrictions) Act 1915. By sections 5(1) and 12(1)(f)(g) of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920 protection was extended to (a) the widow of a tenant dying intestate who was residing with him at the date of his death and (b) where a tenant dying intestate left no widow or was a woman, such member of tenant's family residing with the tenant at death as might be decided in default of agreement by a County Court. From 1933 it had to be shown that the latter category (b) but not the former had filled a six months' residential qualifying period (Rent and Mortgage Interest Restrictions (Amendment) Act 1933 section 13.

    By section 13 of the Rent Act 1965 rights of succession were also given to the widow and members of the family of the first person benefitting from the protection.

    The Rent Act 1977 consolidated the existing law but section 76 of the Housing Act 1980 extended the rights to take over the tenancy to a surviving spouse of either sex and not just to the widow. The Act of 1977 was amended by the Housing Act 1988. The result was that at the relevant time for the present case by Schedule 1 to the Act of 1977 as amended an "original tenant" was defined as the person "Who, immediately before his death, was a protected tenant of the dwelling-house or the statutory tenant of it by virtue of his previous protected tenancy" (paragraph 1). Then it is provided in paragraphs 2 and 3 that:

     "2. (1) The surviving spouse (if any) of the original tenant if residing in the dwelling-house immediately before the death of the original tenant, shall after the death be the statutory tenant if and so long as he or she occupies the dwelling-house as his or her residence.

      (2) For the purposes of this paragraph, a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant.

      (3) If, immediately after the death of the original tenant, there is, by virtue of sub-paragraph (2) above, more than one person who fulfils the conditions in sub-paragraph (1) above, such one of them as may be decided by agreement or, in default of agreement, by the county court shall be treated as the surviving spouse for the purposes of this paragraph.

     "3. Where paragraph 2 above does not apply, but a person who was a member of the original tenant's family was residing with him in the dwelling-house at the time of and for the period of two years immediately before his death then, after his death, that person or if there is more than one such person such one of them as may be decided by agreement, or in default of agreement by the county court, shall be entitled to an assured tenancy of the dwelling-house by succession."

    It is unnecessary for present purposes to set out the remainder of the Schedule. It is however to be noted that since the Act of 1988 it is only the spouse (actual or deemed) who gets a statutory tenancy. Other family members get an assured tenancy which does not pass on to that person's successor whereas in the case of the spouse there may be a further succession.

    There are differences between this legislation and the Housing Acts dealing with public sector housing but it does not seem to me necessary to set out those provisions here.

    Mr. John Thompson was the "original tenant" of a flat known as 75A Ravenscourt Road, London, W6 from 1972 until his death in his 60s on 9 November 1994. That flat is part of a two-flat building of which the respondents are the registered freehold owners. Mr. Martin Fitzpatrick, the appellant in these proceedings, lived with Mr. Thompson in the flat from 1976 until the latter's death and has continued to live there since. It is agreed between the parties that the appellant and the deceased had been partners in a longstanding, close, loving and faithful, monogamous, homosexual relationship.

    The appellant sought a declaration that he had succeeded to the tenancy under the Rent Act 1977, as amended. He claimed that he was "a spouse" of the deceased in that he had been living with Mr. Thompson "as his or her wife or husband" or alternatively that he was a member of Mr. Thompson's family.

    His Honour Judge Colin Smith Q.C. in a sensitive and sympathetic judgment found the relationship to have been of the description agreed by the parties to which I have referred. He related an accident in 1986 when Mr. Thompson fell down the stairs and sustained a blood clot to the brain which led to his being in a coma for some months. When he came round he never spoke again. As the judge said "Eventually, after various unfortunate incidents at the hospital, the applicant took Mr. Thompson home in April 1986 to care for him full time himself. The applicant took over the total care 24 hours a day for Mr. Thompson, feeding him and nursing him until his death in 1994. The applicant gave up his job and received benefit because he was unable to work, due to his full time care of Mr. Thompson. Despite the loving and dedicated care of the applicant, Mr. Thompson died in November 1994."

    The learned judge held, however, that the appellant could not succeed to the tenancy under either of the ways he put his claim. Waite L.J. and Roche L.J. [1998] Ch. 304 agreed with him in the result though expressing considerable sympathy and understanding of the position in which same-sex partners living together found themselves under the legislation as they, and in the case of Roche L.J. with hesitation in respect of the second way of putting the claim, held it to be. They both considered that there were matters which Parliament ought to consider. Ward L.J. in a trenchant and detailed judgment concluded that the appellant succeeded as a spouse of, but, if not, then as a member of the family of, the original tenant.

    On this appeal to your Lordships' House the appellant put forward both grounds but he relies in the first place on paragraph 2 of the Schedule to the Act of 1977, as amended. "Spouse" he says, is to be interpreted in the present climate as including two persons of the same sex intimately linked in a relationship which is not merely transient and which has all the indicia of a marriage save that the parties cannot have children. In the second place he says that the intimacy of the relationship of two persons living together as he and Mr. Thompson were is such that they should be regarded as constituting a family.

    It has been suggested that for your Lordships to decide this appeal in favour of the appellant would be to usurp the function of Parliament. It is trite that that is something the courts must not do. When considering social issues in particular judges must not substitute their own views to fill gaps. They must consider whether the new facts "fall within the parliamentary intention" (Royal College of Nursing v. D.H.S.S. [1981] A.C. 800, 822 per Lord Wilberforce). Thus in the present context if, for example, it was explicit or clear that Parliament intended the word "family" to have a narrow meaning for all time, it would be a court's duty to give effect to it whatever changes in social attitudes a court might think ought to be reflected in the legislation. Similarly if it were explicit or clear that the word must be given a very wide meaning so as to cover relationships for which a court, conscious of the traditional views of society might disapprove, the court's duty would be to give effect to it. It is, however, for the court in the first place to interpret each phrase in its statutory context. To do so is not to usurp Parliament's function; not to do so would be to abdicate the judicial function. If Parliament takes the view that the result is not what is wanted it will change the legislation.

    The question is, therefore, was the appellant the spouse of or a member of the family of Mr. Thompson within the meaning of this Act? I stress "within the meaning of this Act" since it is all that your Lordships are concerned with. In other statutes, in other contexts, the words may have a wider or a narrower meaning than here. I refer to the judgment of McHugh J. in In Re Wakim [1999] 173 A.L.J.R. 839, 850 in the High Court of Australia which recognises that changes in attitudes and perceptions may require a wider meaning to be given to a word such as "marriage", at any rate in some contexts.

    The first question then is whether the appellant was the "spouse" of Mr. Thompson within the meaning of paragraph 2 of Schedule 1 to the Act of 1977 as amended. I recognise that if the non-gender specific noun "spouse" stood alone the matter might be more debateable as Mr. Blake Q.C. contends, though the ordinary meaning is plainly "husband" or "wife". In the context of this Act, however, "spouse" means in my view legally a husband or wife. The 1988 Amendment extended the meaning to include as a "spouse" a person living with the original tenant "as his or her wife or husband". This was obviously intended to include persons not legally husband and wife who lived as such without being married. That prima facie means a man and a woman, and the man must show that the woman was living with him as "his" wife; the woman that he was living with her as "her" husband. I do not think that Parliament as recently as 1988 intended that these words should be read as meaning "my same sex partner" rather than specifically "my husband" or "my wife". If that had been the intention it would have been spelled out. The words cannot in my view be read as the appellant contends. I thus agree as to the result with the decision in Harrogate Borough Council v. Simpson (1984) 17 H.L.R. 205. The appellant accordingly fails in the first way he puts his appeal. Whether that result is discriminatory against same-sex couples in the light of the fact that non-married different sex couples living together are to be treated as spouses so as to allow one to succeed to the tenancy of the other may have to be considered when the Human Rights Act 1998 is in force. Whether the result is socially desirable in 1999 is a matter for Parliament.

    Is it fatal to a claim to be a member of the family of the original tenant that the appellant cannot show that he was living with Mr. Thompson as his husband or wife, the nearest family relationship he asserts. In my view it is not. If a person does not succeed on the first he may still succeed on the second category. Here the partner fails because the first category requires partners of different sexes. That he cannot satisfy. If he satisfies the definition of family he may still qualify.

    I turn then to the second question which I at any rate have found a difficult one--difficult largely because of preconceptions of a family as being a married couple and, if they have children, their children; difficult also because of the result in some of the earlier cases when applying the law to the facts. It is, however, obvious that the word "family" is used in a number of different senses, some wider, some narrower. "Do you have any family?" usually means "do you have children?" "We're having a family gathering" may include often distant relatives and even very close friends. The "family of nations", "the Christian family" are very wide. This is no new phenomenon. Roman Law, as I understand it, included in the familia all members of the social unit though other rights might be limited to spouses or heirs.

    It is not an answer to the problem to assume (as I accept may be correct) that if in 1920 people had been asked whether one person was a member of another same-sex person's family the answer would have been "no". That is not the right question. The first question is what were the characteristics of a family in the Act of 1920 and the second whether two same-sex partners can satisfy those characteristics so as today to fall within the word "family". An alternative question is whether the word "family" in the Act of 1920 has to be updated so as to be capable of including persons who today would be regarded as being of each other's family, whatever might have been said in 1920 (see Lord Steyn in Reg. v. Ireland [1998] A.C. 147 at p. 158; Bennion "Statutory Interpretation: a Code" 3rd ed. 1997 at p. 686 and Halsbury's Laws (4th ed. Re-issue) (1995) vol. 44(1), para. 1473.     If "family" could only mean a legal relationship (of blood or by legal ceremony of marriage or by legal adoption) then the appellant must obviously fail. Over the years, however, the courts have held that this is not so.