Fitzpatrick v Sterling Housing Association Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WAITE,LORD JUSTICE ROCH,LORD JUSTICE WARD |
| Judgment Date | 23 July 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0723-4 |
| Docket Number | No CCRTF 96/0638/E |
| Court | Court of Appeal (Civil Division) |
| Date | 23 July 1997 |
[1997] EWCA Civ J0723-4
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF HIS HONOUR JUDGE C SMITH QC
Royal Courts of Justice
Strand
London WC2
Lord Justice Waite
Lord Justice Roch
Lord Justice Ward
No CCRTF 96/0638/E
MR JAN LUBA (Instructed by John Ford of Islington, London) appeared on behalf of the Appellant
MR VIVIAN CHAPMAN and MR C CANT (Instructed by Belvederes of London) appeared on behalf of the Respondent
The short but difficult question raised by this appeal is whether the surviving partner in a stable and permanent homosexual relationship can claim succession rights under the Rent Acts in respect of premises of which the deceased partner was a protected tenant. The facts are not in dispute. Mr John Thompson became the statutory tenant of a flat No 75 Ravenscourt Road London W6 ("the flat") in 1972. The appellant Mr Fitzpatrick moved in to live with him there in 1976, and the two of them maintained from then onwards a close, loving and faithful homosexual relationship. Early in 1986 Mr Thompson suffered, as a result of a fall, head injuries which required surgery and then a stroke which left him a tetraplegic. From the summer of that year Mr Fitzpatrick nursed him at home, and dedicated himself to providing, with love and devotion, the constant care which he required. In 1994 Mr Thompson died.
The landlords are a charity providing families and individuals with accommodation at affordable rents. It is common ground that they do not qualify as a Housing Action Trust within the terms of the Housing Act 1985 (as now amended), and that they accordingly fall to be treated as private landlords subject to the Rent Acts. Mr Fitzpatrick applied to take over the tenancy of the flat (which comprises four rooms plus kitchen and bathroom) but the landlords, though willing to re-house him in smaller accommodation in another of their properties, were not prepared to agree.
Mr Fitzpatrick applied to the West London County Court for a determination that he was entitled to succeed to the tenancy of the flat. His application was given a careful and sympathetic hearing in the Central London Trials Centre by His Honour Judge Colin Smith QC, who on 19 April 1996 dismissed it with obvious reluctance, holding that he was constrained by law to treat him as being outside the statutory definitions of a person entitled to succeed on the death of a statutory tenant. From that decision Mr Fitzpatrick now appeals to this court.
The issues confronting the judge cannot be appreciated without a recital—unavoidably at some length I am afraid—of the statute and case law which has developed around this topic. It will be necessary to include in that survey the secure tenancy regime for council house tenants as well as the Rent Act regime in the private sector because the two regimes have similarities in regard to succession rights which are relevant to the arguments raised on this appeal.
THE LAW
A degree of transmission on death was a feature of the Rent Acts since their inception in 1920. At first it was achieved by extending the definition of "the tenant" to include a widow or qualifying member of his family. That was replaced by a legislative scheme (maintained to this day) of setting out the rights of succession in a schedule specifying in the first paragraph the primary successor and in the second a default category of qualifying successor. Originally the primary successor was the deceased tenant's widow. From 1968 the secondary or default category was defined as a person who was a member of the original tenant's family residing with him for six months immediately before his death. A provision was added in the 1977 Act that if there was more than one such person the right of succession should be determined in default of agreement by the court. The Housing Act 1980 substituted "surviving spouse" for "widow" in the primary class, which was thus extended to widowers.
When security of tenure was afforded to council tenants by the Housing Act 1980, a scheme was set up which bore similarities to the Rent Act regime. But there were differences. S 30 (now S 87 of the Housing Act 1985) provided a similarly expressed primary right of succession for the deceased tenant's spouse and secondary right for "another member of the tenant's family" living with him for twelve months before his death. In this instance, however, the term "family" was specifically defined. S 50 (now S 113 of the 1985 Act) provided that:
"A person is a member of another's family …..if
(a) he is the spouse of that person, or he and that person live together as husband and wife, or
(b) he is that person's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece".
A further sub-section applied the categories in (b) to cases where the relevant relationship was by marriage, step relationship, or half blood.
It is to be noted that although advantage was taken by Parliament when enacting the Housing Act 1980 of the opportunity to amend the Rent Acts by substituting spouse for widow in the primary class of successor, and thus harmonise the two succession systems in that respect, it was not apparently thought necessary or desirable to introduce into the Rent Act regime two significant features of the secure tenancy regime, namely the specific definition of "family" and the specific enlargement of the definition of "spouse" to include persons "living together as husband and wife". Those were left to be dealt with in the Rent Act regime, as they had been previously, by judicial interpretation.
It will be convenient at this point to pause in the narrative of statutory development and turn to the authorities embodying that interpretation. Their full significance cannot be appreciated without some reference to the social changes that were occurring during the period with which they were concerned—that is to say the mid-60s to the mid-80s—regarding the incidence of, and social attitudes towards, cohabitation outside marriage in heterosexual, and also in gay and lesbian, relationships.
Unmarried cohabitation between heterosexuals developed strikingly in scale to the point that today (according to figures helpfully supplied by the Family Policies Study Centre) 25% of all women aged between 18 and 49 are unmarried cohabitants, and in the age group most likely to cohabit (women in their late 20s and men in their late 30s) over one third of the population now cohabits. As it became more common, cohabitation lost the secretiveness with which it had sometimes been concealed by those who felt the need to give the appearances of marriage (through change of surname by deed poll for example) to their relationship. As it became more open, so attitudes toward it became less judgmental. That included the attitude of the courts, where notwithstanding that the encouragement of marriage as an institution remains a well established head of public policy, the respect due to the sincerity of commitment involved in many such relationships is reflected in judicial terminology—terms like "partner" now being more generally used than the once preferred references to "common law spouse", "mistress" or even (as will shortly be illustrated) "living in sin." A similar respect is reflected in The Law Commission's current consideration of steps to devise for unmarried partners procedures to ease the potential for financial dispute when such relationships break down.
In the same way, though on a lesser scale, the increasing recognition by society of the respect due to those who share orientation towards their own sex has led to a greater openness in, and the removal of public censoriousness towards, gay and lesbian cohabitation. One indicator of this has been the willingness of the court, in appropriate circumstances, to regard a partner in a gay or lesbian relationship as a suitable person to adopt a child—see (in Scotland) the Opinion of the Lord President in The Petition of AMT (26 July 1996) and the judgment of Singer J in Re W (minor) The Times 21 May 1997. The degree of interdependence, marital in character, involved in gay or lesbian relationships has also been acknowledged in the field of equity—see Barclays Bank v O'Brien 1994 AC 180 per Lord Browne-Wilkinson at page 198 D.
Turning (against that changing social background) to the case law, I begin with Brock v Wollams [1949] 2 KB 388. It concerned a statutory tenant survived by a child who had been informally, though not legally, adopted. The child was held by this court to have been included within the definition of the tenant's family for Rent Act purposes. Cohen LJ (at p 395) expressed it in these terms:
"The question the county court judge should have asked himself was this: Would an ordinary man, addressing his mind to the question whether [the daughter] was a member of the family or not, have answered "yes" or "no"? To that question I think there is only one possible answer, and that is "yes"."
Gammans v Ekins [1950] 2 KB 328 concerned a heterosexual relationship between an unmarried couple who had adopted all the appearances of marriage and were thought of in their neighbourhood as being man and wife. The Court of Appeal rejected the claim of the survivor to be treated as a member of the deceased tenant's "family". Asquith LJ held that the tie of marriage was essential to family membership. commenting that if (as to which there had been no finding below) the relationship was a sexual one it would be anomalous to allow the status of irremovability under the Rent Acts to be acquired "by living or having lived...
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