Ghaidan v Godin-Mendoza

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Keene,Lord Justice Kennedy,Lord Justice Buxton
Judgment Date05 November 2002
Neutral Citation[2002] EWCA Civ 1533
Date05 November 2002
Docket NumberCase No: B2/2002/0359

[2002] EWCA Civ 1533




Royal Courts of Justice

Strand, London, WC2A 2LL

Royal Court of Justice


London WC2A 2LL


Lord Justice Kennedy

Lord Justice Buxton and

Lord Justice Keene

Case No: B2/2002/0359

Antonio Mendoza
Ahmad Raja Ghaidan

Mr Paul Staddon (instructed by Messrs Oliver Fisher) for the Appellant

Mr Jonathan Small (instructed by Hugh Cartwright & Amin) for the Respondent

Mr Rabinder Singh QC (instructed by Bindman & Partners) for the intervener Stonewall

Lord Justice Buxton



We are required in this appeal to revisit, in the light of the European Convention on Human Rights [the Convention] and the Human Rights Act 1998 [the HRA], the decision of the House of Lords in Fitzpatrick v Sterling Housing Association [2001] 1 AC 27.


The House was called on to construe paragraphs 2 and 3 of Schedule 1 to the Rent Act 1977, as amended:

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(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……shall be entitled to an assured tenancy of the dwelling-house by succession.

The House held that although a person who had been in a same-sex relationship with a deceased tenant could qualify as a member of the tenant's "family" under paragraph 3(1) of the Schedule, the extension made by paragraph 2(2) of that Schedule of the word "spouse" to persons "living with the original tenant as his or her wife or husband" could not include persons in a same-sex relationship. The effect of that ruling is that on the death of a tenant in a same-sex relationship that was in substance though not in form equivalent to a spousal relationship, the tenant's partner is entitled, as a member of the tenant's family under paragraph 3(1), to succeed to an assured tenancy of the property; but since he is not a "spouse" he cannot succeed to a statutory tenancy under paragraph 2(1). If the relationship had been a heterosexual one, but in every other respect the same, the partner would be eligible to succeed to the statutory tenancy because of the specific provision in paragraph 2(2).


The facts that give rise to the present appeal are not materially different from those in Fitzpatrick. Although there was some dispute at the trial the judge found, and it is not now in issue, as follows. A Mr Walwyn-Jones became tenant of the demised premises in April 1983. The landlord who granted the tenancy was Mr Ghaidan's father, now unfortunately deceased, so his son continues the matter as claimant. Mr Mendoza had shared a flat with Mr Walwyn-Jones since 1972, and moved into the demised premises with him. There was what the judge described as overwhelming evidence that Mr Walwyn-Jones and Mr Mendoza were in what Lord Nicholls called in Fitzpatrick, at p47B, a very close, loving and monogamous relationship, characterised by long-term sexual intimacy. They were therefore members of the same family for the purposes of paragraph 3 of the Schedule; and, although the judge does not seem to have so found in terms, it is inescapable on his findings of primary fact that, save for the relationship being between two persons of the same sex, they were living together in the way that spouses live together.


The judge accordingly awarded Mr Mendoza an assured tenancy. He held that he was precluded by Fitzpatrick from awarding a statutory tenancy, and was not persuaded that the construction of paragraph 2 adopted by the House in Fitzpatrick had now to be reconsidered in the light of the Convention and of the HRA. That last question is the only matter contested in this appeal.

The issues


Thanks to the judgement exercised by Mr Staddon and Mr Small, what at first sight seemed to be a somewhat unwieldy case was narrowed down considerably in scope. Originally the appellant submitted that he was able to rely within the Convention on all of article 8 (respect for home and private life); article 14 (discrimination); and article 1 of the First Protocol (protection of property). He was supported, in respect of article 14, by an intervention by Stonewall, and before us Mr Staddon agreed that his real case was under article 14, put quite simply that to afford a statutory tenancy to the survivor of a heterosexual relationship when the survivor of an equivalent homosexual relationship was limited to the less beneficial assured tenancy constituted discrimination on grounds of sexual orientation. In that context, article 8 and article 1 of the First Protocol were merely gateways to the application of article 14, or the context in which that article took effect. Mr Small, for his part, conceded that in the light of the decision of this court in Wilson v First County Trust (No 2) [2002] QB 74 we were obliged to construe the Schedule, even in a case between two private individuals, in a way that was compatible with Convention rights. In some cases that obligation will not affect the outcome, since Convention rights are, in their origin and meaning, only exigible against the state. That difficulty does not however arise in respect of article 14, since in its terms it imposes on the state not merely a duty to refrain from certain conduct in relation to its citizens, but also a positive obligation to "secure" to those citizens the enjoyment of Convention rights without discrimination. Accordingly, in construing the Schedule in the context of article 14 we have to ask whether that legislative act, construed in domestic law as it was in Fitzpatrick, does indeed secure to citizens the relevant freedom from discrimination.

Article 14: preliminary


Important guidance as to the reach and application of article 14 has recently been given by this court in Michalak v London Borough of Wandsworth [2002] EWCA Civ 271, in §20 of the judgment of Brooke LJ, which was agreed to in terms by Park J. That guidance binds us, because a court is bound by any decision within the normal hierachy of domestic authority as to the meaning of an article of the Convention, in the same way as it is bound by such a decision as to the meaning of purely domestic law: see the observations of Judge LJ in R (Bright) v Central Criminal Court [2001] 1 WLR 662, 682D, approved by this court in Kaya v Haringey LBC [2001] EWCA Civ 677, at §§ 36–37.


We are therefore obliged to ask ourselves the following four questions:

i) Do the facts fall within the ambit of one or more of the substantive Convention provisions?

ii) If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparision ("the chosen comparators") on the other?

iii) Were the chosen comparators in an analogous situation to the complainant's situation?

iv) If so, did the difference have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved?


Mr Small conceded that questions (ii) and (iii) had to be answered in the affirmative. The chosen comparator was the survivor of a heterosexual partnership, in an analogous situation to the claimant, and the two of them had been treated differently. Since the point may be of some importance at a later stage of the argument, I should interpose to say that those concessions were not only properly made, but inevitable. Mr Small however raised strong and detailed arguments under both question (i) and question (iv), to which issues I now turn.

Article 14: "ambit"


Article 14 reads:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

An uninformed reading of the bare words of that provision might suggest that a complainant had to establish an actual breach of another article of the Convention before he could rely on article 14. Jurisprudence has however established that that is not so. As it is put in Grosz, Beatson & Duffy, Human Rights (2000), § C14–10:

"It would appear, however, that even the most tenuous link with another provision in the Convention will suffice for Article 14 to enter into play."

A recent illustration is to be found in Petrovic v Austria (2001) 33 EHRR 14, a complaint about the refusal of the Austrian authorities to grant to men a parental leave allowance that was available to mothers. The Court held, at §26, that article 8 itself was not infringed since it did not impose any positive obligation on the state to provide the financial assistance in question. Nonetheless, at §§ 27–29:

"this allowance paid by the State is intended to promote family life and necessarily affects the way in which the latter is organised as, in conjunction with parental leave, it enables one of the parents to stay at home to look after the children. The Court has said on many occasions that...

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