Judgment - Fitzpatrick (A. P.) v. Sterling Housing Association Ltd.  continued

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In the first place it has been said that the ordinary meaning of the word is to be taken; "family" where it is used in the Rent Acts is not a term of art (per Lord Diplock in Carrega Properties S.A. v. Sharratt [1979] 1 W.L.R. 928, 931, though the meaning for Viscount Dilhorne (at p. 932) is a question of law and "family" is not the same as "household".

In the second place it has been accepted that de facto relationships can be recognised as constituting a family. Thus in Brock v. Wollams [1949] 2 K.B. 388, a child adopted in fact who lived with the tenant for many years, but who was not adopted under the Adoption of Children Act 1926, was held to be a member of his family living with him at his death within the meaning of the Act of 1920. Bucknill L.J., at p. 393, cited with apparent approval the judgment of Wright J. in Price v. Gould (1930) 46 T.L.R. 411 where he said in relation to wills and settlements that the legislature had used the word "family" "to introduce a flexible and wide term" so that brothers and sisters of the tenant were family for the purposes of the Act. Bucknill L.J. had no doubt that both de facto adopted and illegitimate children were included as family. Denning, L.J. added, at p. 396:

     "It seems to me that 'members of the tenant's family' within section 12 sub-section 1(g) of the Act of 1920, include not only legitimate children but also step-children, illegitimate children and adopted children, whether adopted in due form of law or not."

In Ross v. Collins [1964] 1 W.L.R. 425 the defendant had acted as the original tenant's housekeeper in return for which he remitted her rent. They had never addressed each other by their Christian names and there was no question of an intimate personal relationship. Russell L.J., with whose speech Lord Diplock in Carrega [1979] 1 W.L.R. 928, 931 agreed said, at p. 432:

      "Granted that 'family' is not limited to cases of a strict legal familial nexus, I cannot agree that it extends to a case such as this. It still requires, it seems to me, at least a broadly recognisable de facto familial nexus. This may be capable of being found and recognised as such by the ordinary man--where the link would be strictly familial had there been a marriage, or where the link is through adoption of a minor, de jure or de facto, or where the link is 'step-', or where the link is 'in-law' or by marriage. But two strangers cannot, it seems to me, ever establish artificially for the purposes of this section a familial nexus by acting as brothers or as sisters, even if they call each other such and consider their relationship to be tantamount to that. Nor, in my view, can an adult man and woman who establish a platonic relationship establish a familial nexus by acting as a devoted brother and sister or father and daughter would act, even if they address each other as such and even if they refer to each other as such and regard their association as tantamount to such. Nor, in my view, would they indeed be recognised as familial links by the ordinary man."

    In the application of this "ordinary meaning", "de facto" approach there are not surprisingly decisions on both sides of the line. In Helby v. Rafferty [1979] 1 W.L.R. 13, the court refused to hold that a man who had lived with a woman tenant for five years before her death were part of the same family because they had deliberately opted to retain their formal independence and they had not been recognised as being married. In Watson v. Lucas [1980] 1 W.L.R. 1493, on the other hand, the Court of Appeal by a majority held that a woman who had lived with a man, although he remained married to his wife, was a member of his family for the purpose of Schedule 1 to the Act of 1977 because of the lasting relationship between them. In Hawes v. Evenden [1953] 1 W.L.R. 1169, the claimant was an unmarried woman who had lived with the deceased tenant for 12 years and had had two children with him. The court held that there was evidence that the claimant and the tenant and the children had lived together as a family and she was therefore a member of his family for the purposes of the Act of 1920. In Chios Property Investment Ltd. v. Lopez (1987) 20 H.L.R. 120 the court stressed the importance of a "sufficient state of permanence and stability" having been reached in the relationship so as to constitute family. In Jones v. Whitehill [1950] 2 K.B. 204, a woman who out of love and kindness went to live with her aunt and uncle, was held on the uncle's death to be a member of his family.

    The high water mark one way is Gammans v. Ekins [1950] 2 K.B. 328. There the claimant had lived with a woman tenant and they were regarded in the neighbourhood as man and wife. It was held that he could not be a member of her family for the Act of 1920. Asquith L.J., at p. 331, said that if their relationship was sexual "it seems to me anomalous that a person can acquire a 'status of irremovability' by living or having lived in sin, even if the liaison has not been a mere casual encounter but protracted in time and conclusive in character." Lord Evershed M.R. saw considerable force in the claimant's argument but finally agreed in the result. He added, at p. 334:

     "It may not be a bad thing that by this decision it is shown that, in the Christian society in which we live, one, at any rate, of the privileges which may be derived from marriage is not equally enjoyed by those living together as man and wife but who are not married."

    The high water mark the other way is Dyson Holdings Ltd. v. Fox [1976] Q.B. 503. This decision has however been confined to its own facts or doubted by Roskill L.J. in Helby v. Rafferty [1979] 1 W.L.R. 13, 23-24 and by Oliver L.J. in Watson v. Lucas [1980] 1 W.L.R. 1493, 1503-1504. In Dyson the defendant had lived with the tenant for 21 years until his death. They were unmarried and had no children. Reversing the County Court judge, the Court of Appeal ruled that she was a member of his family. Lord Denning M.R. [1976] Q.B. 503, 509 held that Gammans (supra) was wrongly decided and that it was absurd to distinguish between two couples on the basis that one had children and the other did not. James L.J. said, at p. 511:

     "The popular meaning given to the word 'family' is not fixed once and for all time. I have no doubt that with the passage of years it has changed. The cases reveal that it is not restricted to blood relationships and those created by the marriage ceremony. It can include de facto as well as de jure relationships. The popular meaning of 'family' in 1975 would, according to the answer of the ordinary man, include the defendant as a member of Mr. Wright's family. This is not to say that every mistress should be so regarded. Relationships of a casual or intermittent character and those bearing indications of impermanence would not come within the popular concept of a family unit."

He accepted that Gammans was authority for the meaning of "family" in 1949 but not in 1975. Bridge L.J. said, at pp. 512-513:

     "Now, it is, I think, not putting it too high to say that between 1950 and 1975 there has been a complete revolution in society's attitude to unmarried partnerships of the kind under consideration. Such unions are far commoner than they used to be. The social stigma that once attached to them has almost, if not entirely, disappeared. The inaccurate but expressive phrases "common law wife" and "common law husband" have come into general use to describe them. The ordinary man in 1975 would, in my opinion, certainly say that the parties to such a union, provided it had the appropriate degree of apparent permanence and stability, were members of a single family whether they had children or not."

The facts of Gammans would now be covered by the 1988 amendment "living as his or her husband or wife", but in any event it seems to me that the claimant there was a member of the tenant's family both in 1949 and in 1975.

    The question has been raised as to whether your Lordships are bound by the decision of the House in Carrega Properties (supra) to reach the conclusion that this applicant must fail. In my view your Lordships are not so bound. In that case it was held that two people, one 75 and one 24, could not establish a familial relationship by acting together as aunt and nephew. It was a decision on the facts. Lord Diplock stressed at the beginning of his speech, at p. 930:

      "The facts of the instant case, if they are not unique, are certainly most unusual, and for that reason they do not, in my opinion, provide a suitable occasion for this House to undertake a general consideration of what persons may be included in the expression 'a member of the original tenant's family' where at the time of the tenant's death there did exist between him and the claimant to a statutory tenancy by succession a relationship of one or other of the various kinds to which I have referred above. In particular, the difficult question posed by Dyson Holdings Ltd. v. Fox [1976] Q.B. 503 as to the extent, if any, to which changed social attitudes towards cohabitation between unmarried couples and the offspring of such liaisons may have enlarged the meaning of the expression "family" in the Rent Act 1968 does not arise in the instant case and is best left for consideration in the light of the actual facts of a case in which it does arise."

    The issue is in my view open for your Lordships to decide.

    Given, on the basis of these earlier decisions that the word is to be applied flexibly, and does not cover only legally binding relationships, it is necessary to ask what are its characteristics in this legislation and to answer that question to ask further what was Parliament's purpose. It seems to me that the intention in 1920 was that not just the legal wife but also the other members of the family unit occupying the property on the death of the tenant with him should qualify for the succession. The former did not need to prove a qualifying period; as a member of the tenant's family a two-year residence had to be shown. If more than one person qualified then if no agreement could be reached between them the court decided who should succeed.

    The hall marks of the relationship were essentially that there should be a degree of mutual inter-dependence, of the sharing of lives, of caring and love, of commitment and support. In respect of legal relationships these are presumed, though evidently are not always present as the family law and criminal courts know only too well. In de facto relationships these are capable, if proved, of creating membership of the tenant's family. If, as I consider, this was the purpose of the legislation, the question is then who in 1994 or today (I draw no distinction between them) are capable in law of being members of the tenant's family. It is not who would have been so considered in 1920. In considering this question it is necessary to have regard to changes in attitude. The point cannot have been better put than it was by Sir Thomas Bingham M.R. in Reg. v. Ministry of Defence, Ex parte Smith [1996] Q.B. 517 at pp. 552-554 when, although dealing with the validity of an administrative decision rather than the meaning of a few words in a statute, said, after referring to changes of attitude in society towards same-sex relationships:

      "I regard the progressive development and refinement of public and professional opinion at home and abroad, here very briefly described, as an important feature of this case. A belief which represented unquestioned orthodoxy in year X may have become questionable by year Y and unsustainable by year Z. Public and professional opinion are a continuum."

If "meaning" is substituted for "opinion" the words are no less appropriate. In Barclays Bank Plc. v. O'Brien [1994] 1 A.C. 180, 198 Lord Browne-Wilkinson (with whom other members of the House agreed) said that in relation to the equity arising from undue influence in a loan transaction,

     "But in my judgment the same principles are applicable to all other cases where there is an emotional relationship between cohabitees. The 'tenderness' shown by the law to married women is not based on the marriage ceremony but reflects the underlying risk of one cohabitee exploiting the emotional involvement and trust of the other. Now that unmarried cohabitation, whether heterosexual or homosexual, is widespread in our society, the law should recognise this."

    In particular if the 1988 amendment had not been made ("as his or her wife or husband") I would have no hesitation in holding today when, it appears, one-third of younger people live together unmarried, that where there is a stable, loving and caring relationship which is not intended to be merely temporary and where the couple live together broadly as they would if they were married, that each can be a member of the other's family for the purpose of the Act of 1977.

    If, as I think, in the light of all the authorities this is the proper interpretation of the Act of 1920 I hold that as a matter of law a same-sex partner of a deceased tenant can establish the necessary familial link. They are capable of being in Russell L.J.'s words in Ross v. Collins [1964] 1 W.L.R. 425, 432: "A broadly recognisable de facto familial nexus." It is then a question of fact as to whether he or she does establish the necessary link.

    It is accordingly not necessary to consider the alternative question as to whether by 1999 the meaning of the word in the Act of 1920 needs to be updated. I prefer to say that it is not the meaning which has changed but that those who are capable of falling within the words have changed.

    We have been referred to a number of authorities in other jurisdictions. I wish to mention only two. Your Lordships' attention has been drawn to Braschi v. Stahl Associates Co. (1989) 544 N.Y.S. 2d 784. There the issue was as to the meaning of the New York City Rent and Eviction Regulations which provided that a landlord might not dispossess "either the surviving spouse of the deceased tenant or some other member of the deceased's tenant's family who has been living with the tenant." The majority of the New York Court of Appeals held, at pp. 788-789:

     "The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life. In the context of eviction, a more realistic, and certainly equally valid, view of a family includes two adult lifetime partners whose relationship is long term and characterised by an emotional and financial commitment and interdependence."

In law therefore a same-sex partner of the deceased tenant was, it was held, able to qualify if he could produce the necessary evidence.

    The second case to which I refer is El-Al Israeli Airlines Ltd. v. Danilowitz National Journal of Sexual Orientation Law vol. 1, p. 304. That was a case involving the provision of airline tickets for a married spouse and an unmarried cohabitant of a different sex. It was not provided to same-sex partners. Vice-Chief Justice Barak said:

     "The benefit is thus provided to a lasting living-together partnership which displays a strongly tied up social relationship. It is therefore obvious, in my view, that to take this benefit away from homosexual spouses constitutes a discriminatory violation of the equality principle. The differentiating reason standing behind this decision has to do with sexual orientation. But this latter fact was both immaterial and unfair . . . Does a homosexual cohabitation differ from a heterosexual one, as far as partnership, unity and a social-cell relationship are concerned?"