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

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    Ward L.J. expressed an anxiety that he might be exceeding the limits of the judicial function in reaching his decision. Judicial activism certainly has to be tempered by due restraint, and the drawing of the boundary of the judicial task is often delicate and sometimes controversial. I do not consider that the boundary is being passed in the present case. What we are concerned with is the application of a word recognised as being loose and flexible. Parliament has in other contexts provided definitions of the kind of relationships which it intends should be affected by particular provisions. For example under section 113 of the Housing Act 1985 a person was a "member of another's family" if he was the spouse of that person, or if he and that person lived together as husband and wife, or if he was that person's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece. In marked distinction to that kind of approach Parliament has in relation to protected tenancies under the Rent Act 1977 left the word "family" to be applied by the Courts without the guidance of statutory definition. The court in Dyson accordingly applied the word as was appropriate to the social circumstances prevailing at that period, innovating on its earlier application. If, as I believe, the word is now appropriate to cover a homosexual partnership of the kind which existed in the present case, it seems to me consistent with the intention of Parliament that it should be so applied.

    I would allow the appeal.

LORD HUTTON

My Lords,

    The appellant, Mr. Martin Fitzpatrick, was the homosexual partner of the late Mr. John Thompson and lived with him in his flat, of which he was the statutory or protected tenant under the Rent Acts, from 1976 until the latter's death in 1994. The relationship between Mr. Fitzpatrick and his partner was close, loving and faithful and after Mr. Thompson suffered a stroke in 1986 Mr. Fitzpatrick nursed him with devotion and constant care until he died.

    The landlord of the flat was the respondent, the Sterling Housing Association Limited, which is a charity providing accommodation for families and individuals at affordable rents. After Mr. Thompson's death Mr. Fitzpatrick applied to become the tenant of the flat (which comprised four rooms, together with a kitchen and a bathroom) but the respondent, although willing to rehouse him in smaller accommodation in another of its properties, was not prepared to agree to him taking over the tenancy.

    Mr. Fitzpatrick applied to the West London County Court for a determination that he was entitled to succeed to the tenancy of the flat, but his application was dismissed in a careful judgment by Judge Colin Smith Q.C. and his decision was upheld by a majority of the Court of Appeal [1998] Ch. 305 (Waite L.J. and Roch L.J. with Ward L.J. dissenting).

    After a number of amendments Schedule 1 to the Rent Act 1977 now reads so far as relevant:

     "1. Paragraph 2 . . . below shall have effect, subject to section 2(3) of this Act, for the purpose of determining who is the statutory tenant of a dwelling-house by succession after the death of the person (in this Part of this Schedule referred to as 'the original tenant') 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.

     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(1) 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."

Sub-paragraph (2) of paragraph 2 was inserted by section 39(2) of, and Schedule 4 paragraph 2 to, the Housing Act 1988.

    Two issues arise in relation to Mr. Fitzpatrick's application. The first issue is whether Mr. Fitzpatrick was "living with the original tenant as his or her wife or husband" within the meaning of those words in paragraph 2(2) of Schedule 1. If the answer to this question is in the negative, the second issue is whether Mr. Fitzpatrick "was a member of the original tenant's family . . . residing with him in the dwelling house at the time of and for the period of two years immediately before his death" within the meaning of paragraph 3(1) of the Schedule.

    The central thrust of the argument advanced by Mr. Blake Q.C. on behalf of Mr. Fitzpatrick was that the intention of Parliament was to give protection to a person living with the deceased tenant in a close personal relationship and that a broad and purposive approach should be given to paragraphs 2(2) or 3(1) of the Schedule. It was submitted that there is now widespread public acceptance of homosexuality and public recognition that homosexuals live together in stable, loving and permanent unions in the same way as men and women live together. A permanent and loving union between homosexuals is akin to marriage and therefore should come within the protection which Parliament gives to a person who has lived with a tenant as his or her wife or husband or to a person who was a member of the tenant's family residing with him.

    These arguments were rejected by the majority of the Court of Appeal. All three judgments in the Court of Appeal subjected the issues arising in this difficult case to detailed analysis and made a careful survey of the history of the relevant legislation and of the numerous authorities. At the conclusion of his judgment Waite L.J., whilst recognising the devoted and faithful life shared by Mr. Thompson and Mr. Fitzpatrick, stated, at page 318:

      "The survey which I have undertaken in this judgment shows, however, that the law in England regarding succession to statutory tenancies is firmly rooted in the concept of the family as an entity bound together by ties of kinship (including adoptive status) or marriage. The only relaxation, first by court decision and then by statute, has been a willingness to treat heterosexual cohabitants as if they were husband and wife."

Roch L.J. concluded his judgment at page 324 as follows:

      "I agree with both Waite and Ward L.JJ. that the terms of Schedule 1 should be reconsidered with a view to bringing cases such as the present within the protection of the Schedule. No doubt Parliament will consider whether the protection should be that afforded by paragraph 2 or that afforded by paragraph 3 of the Schedule. Nevertheless, I am convinced that it is for Parliament to make the necessary changes after debate when considerations which may not have been raised in this appeal and which may not be apparent to this court can be taken into account."

Applying a functionalist approach to the construction of paragraphs 2(2) and 3(1) the conclusion of Ward L.J. at page 338 on the first issue was:

      "I would say there is no essential difference between a homosexual and a heterosexual couple and, accordingly, I would find that the plaintiff had lived with the deceased tenant as his husband or wife."

On the second issue he stated at page 339:

      "The test has to be whether the relationship of the plaintiff to the deceased was one where there is at least a broadly recognisable de facto familial nexus. I would not define that familial nexus in terms of its structures or components: I would rather focus on familial functions. The question is more what a family does rather than what a family is. A family unit is a social organisation which functions through its linking its members closely together. The functions may be procreative, sexual, sociable, economic, emotional. The list is not exhaustive. Not all families function in the same way. Save for the ability to procreate, these functions were present in the relationship between the deceased and the plaintiff."

The First Issue: Paragraph 2(2) of Schedule 1

    The primary submission advanced on behalf of Mr. Fitzpatrick to this House was that Parliament intended the words "living with the original tenant as his or her husband or wife" to be a broad term to be interpreted by the courts on an incremental basis to include any relationship akin to marriage and not just a relationship between partners of opposite sexes. I share the opinion of all your Lordships that Mr. Fitzpatrick is not entitled to claim that he was living with Mr. Thompson as his wife or husband within the meaning of paragraph 2(2). A person can only live with a man as his wife when that person is a woman, and accordingly Mr. Fitzpatrick cannot claim to have been living with Mr. Thompson as his wife. Similarly a person can only live with another person as a husband when that other person is a woman, and accordingly Mr. Fitzpatrick cannot claim to have been living with Mr. Thompson as his husband. In Harrogate Borough Council v. Simpson (1984) 17 H.L.R. 205 the Court of Appeal held that the expression "living together as husband and wife" in section 50 of the Housing Act 1980 is not apt to include a lesbian relationship and I am in agreement with the opinion of Ewbank J. at page 210 that:

     "The essential characteristic of living together as husband and wife, in my judgment, is that there should be a man and a woman and that they should be living together in the same household."

     Accordingly I am unable to agree with the conclusion of Ward L.J. because I consider that it fails to take account of the essential requirement of paragraph 2(2) which is that the claimant must have been living with a male original tenant as his wife or with a female original tenant as her husband.

The Second Issue: Paragraph 3(1) of Schedule 1

    The secondary submission advanced on behalf of Mr. Fitzpatrick was that if the wording of paragraph 2(2) excludes the relationship of a couple of the same sex, the consideration that that relationship is akin to marriage nevertheless qualifies it as being familial in character so that within the meaning of paragraph 3(1) Mr. Fitzpatrick was a member of Mr. Thompson's family. In considering this submission it is relevant at the outset to have regard to the scheme of Schedule 1 to the Rent Act 1977. Whilst in earlier provisions in the Rent Acts legislation a distinction was not drawn between a widower of the tenant and a member of the tenant's family so that under the 1920 Act it was held that a widower was a member of the tenant's family (see Salter v. Lask [1925] 1 K.B. 584), it is apparent that Schedule 1 to the 1977 Act deals separately with the surviving spouse of the tenant and a person living with the tenant as his or her wife or husband on the one hand and with a member of the tenant's family on the other hand. If Mr. Fitzpatrick were entitled to claim the protection given by Schedule 1 it would appear appropriate that he should obtain protection under paragraph 2 and not under paragraph 3, because the essence of his claim is that the relationship which he shared with Mr. Thompson was the same relationship as that shared between a husband and wife or a couple living together as husband and wife, save that the relationship was homosexual and not heterosexual. Therefore if (as I would hold) Parliament did not intend that a homosexual partner should obtain protection under paragraph 2, it would appear to be a somewhat strained and artificial construction to hold that Mr Fitzpatrick is entitled to obtain protection under paragraph 3.

    In Harrogate Borough Council v. Simpson (1984) 17 H.L.R. 205, 210 Watkins L.J. stated:

      "Mrs. Davies, who appears for the plaintiffs, contends that, if Parliament had wished homosexual relationships to be brought into the realm of the lawfully recognised state of a living together of man and wife for the purpose of the relevant legislation, it would plainly have so stated in that legislation, and it has not done so. I am bound to say that I entirely agree with that."

If it was the intention of Parliament that a homosexual partner should have the same protection under the Rent Acts as a heterosexual partner I think that in 1988 Parliament would have used express words in paragraph 2(2) of Schedule 1 to place a homosexual partner in the same position as an unmarried heterosexual partner rather than leave it to the courts to extend the meaning of the phrase "a member of the original tenant's family" in paragraph 3(1) to include a homosexual relationship. Instead in paragraph 2(2) Parliament used terminology similar to that recently held by the Court of Appeal in the Simpson case to be confined to a heterosexual relationship.

It is also necessary to recognise that the construction of paragraph 3(1) is, in part, a question of law. The meaning given to the word "family" may vary depending upon the context in which it is used and the popular meaning given to the word may change to some extent with the passage of the years, but the decision of this House in Carega Properties S.A. v. Sharratt [1979] 1 W.L.R. 928 makes it clear that in the context of paragraph 3(1) the meaning given to the word "family" cannot be extended beyond the limits permitted by the law. In Carega, referring to the judgment of Megaw L.J. in that case in the Court of Appeal, Lord Diplock said at 931C:

     "Megaw L.J. after quoting the 'Cohen question' went on to say, in my view quite correctly [1979] 1 W.L.R. 3, 7:   '. . . it is for this court to decide, where such an issue arises, whether, assuming all the facts found by the judge to be correct, the question may, as a matter of law, within the permissible limits of the meaning of the phrase 'a member of the tenant's family,' be answered 'Yes.'"

And Viscount Dilhorne said at page 932B

      "My Lords, the meaning to be given to the words 'a member of the original tenant's family' in Schedule 1, paragraph 3 to the Rent Act 1968 is in my view a question of law. 'Family' is a word the content of which varies with the context in which it is used. When used in a statute, it has not in my opinion the same meaning as the word 'household.' While a household may consist only of members of a family, it can include persons not capable of being so regarded. I accordingly cannot accept the argument that 'family' in the Act can be read as meaning 'household.' While the question which Cohen L.J. said in Brock v. Wollams [1949] 2 K.B. 388, 395 the county court judge should have asked himself, namely: 'Would an ordinary man, addressing his mind to the question whether Mrs. Wollams was a member of the family or not, have answered 'yes' or 'no,' has not infrequently been posed, the answer to the question is not likely to extract any more than the judge's personal view. It is to the highest degree unlikely that a judge would ever say: 'I think the answer is 'Yes' but I think an ordinary man would say 'No,' and if a judge did that he would in my opinion be wrong.

     It is for the judge to construe the statute and it is for him to state his conclusion as to the meaning to be given to the word 'family' in the context in which it appears, giving it, unless the context otherwise requires, its ordinary natural meaning."

 
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