Ghaidan v Godin-Mendoza

On the death of a protected tenant of a dwelling-house his or her surviving spouse, if then living in the house, becomes a statutory tenant by succession. But marriage is not essential for this purpose. A person who was living with the original tenant 'as his or her wife or husband' is treated as the spouse of the original tenant: see Rent Act 1977, Schedule 1, para 2(2). In Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 your Lordships' House decided this provision did not include persons in a same-sex relationship. The question raised by this appeal is whether this reading of paragraph 2 can survive the coming into force of the Human Rights Act 1998. In Fitzpatrick's case the original tenant had died in 1994.

In the present case the original tenant died after the Human Rights Act 1998 came into force on 2 October 2000. In April 1983 Mr Hugh Wallwyn-James was granted an oral residential tenancy of the basement flat at 17 Cresswell Gardens, London SW5. Until his death on 5 January 2001 he lived there in a stable and monogamous homosexual relationship with the defendant Mr Juan Godin-Mendoza. Mr Godin-Mendoza is still living there. After the death of Mr Wallwyn-James the landlord, Mr Ahmad Ghaidan, brought proceedings in the West London County Court claiming possession of the flat. Judge Cowell held that on the death of Hugh Wallwyn-James Mr Godin-Mendoza did not succeed to the tenancy of the flat as the surviving spouse of Hugh Wallwyn-James within the meaning of paragraph 2 of Schedule 1 to the Rent Act 1977, but that he did become entitled to an assured tenancy of the flat by succession as a member of the original tenant's 'family' under paragraph 3(1) of that Schedule.

Mr Godin-Mendoza appealed, and the Court of Appeal, comprising Kennedy, Buxton and Keene LJJ, allowed the appeal: [2002] EWCA Civ 1533, [2003] Ch 380. The court held he was entitled to succeed to a tenancy of the flat as a statutory tenant under paragraph 2. From that decision Mr Ghaidan, the landlord, appealed to your Lordships' House.

I must first set out the relevant statutory provisions and then explain how the Human Rights Act 1998 comes to be relevant in this case. Paragraphs 2 and 3 of Schedule 1 to the Rent Act 1977 provide:

'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 2 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.'

On an ordinary reading of this language paragraph 2(2) draws a distinction between the position of a heterosexual couple living together in a house as husband and wife and a homosexual couple living together in a house. The survivor of a heterosexual couple may become a statutory tenant by succession, the survivor of a homosexual couple cannot. That was decided in Fitzpatrick's case. The survivor of a homosexual couple may, in competition with other members of the original tenant's 'family', become entitled to an assured tenancy under paragraph 3. But even if he does, as in the present case, this is less advantageous. Notably, so far as the present case is concerned, the rent payable under an assured tenancy is the contractual or market rent, which may be more than the fair rent payable under a statutory tenancy, and an assured tenant may be evicted for non-payment of rent without the court needing to be satisfied, as is essential in the case of a statutory tenancy, that it is reasonable to make a possession order. In these and some other respects the succession rights granted by the statute to the survivor of a homosexual couple in respect of the house where he or she is living are less favourable than the succession rights granted to the survivor of a heterosexual couple.

Mr Godin-Mendoza's claim is that this difference in treatment infringes article 14 of the European Convention on Human Rights read in conjunction with article 8. Article 8 does not require the state to provide security of tenure for members of a deceased tenant's family. Article 8 does not in terms give a right to be provided with a home: Chapman v United Kingdom (2001) 33 EHRR 399, 427, para 99. It does not 'guarantee the right to have one's housing problem solved by the authorities': Marzari v Italy (1999) 28 EHRR CD 175, 179. But if the state makes legislative provision it must not be discriminatory. The provision must not draw a distinction on grounds such as sex or sexual orientation without good reason. Unless justified, a distinction founded on such grounds infringes the Convention right embodied in article 14, as read with article 8. Mr Godin-Mendoza submits that the distinction drawn by paragraph 2 of Schedule 1 to the Rent Act 1977 is drawn on the grounds of sexual orientation and that this difference in treatment lacks justification.

That is the first step in Mr Godin-Mendoza's claim. That step would not, of itself, improve Mr Godin-Mendoza's status in his flat. The second step in his claim is to pray in aid the court's duty under section 3 of the Human Rights Act 1998 to read and give effect to legislation in a way which is compliant with the Convention rights. Here, it is said, section 3 requires the court to read paragraph 2 so that it embraces couples living together in a close and stable homosexual relationship as much as couples living together in a close and stable heterosexual relationship. So read, paragraph 2 covers Mr Godin-Mendoza's position. Hence he is entitled to a declaration that on the death of Mr Wallwyn-James he succeeded to a statutory tenancy.

Discrimination

The first of the two steps in Mr Godin-Mendoza's argument requires him to make good the proposition that, as interpreted in Fitzpatrick's case, paragraph 2 of Schedule 1 to the Rent Act 1977 infringes his Convention right under article 14 read in conjunction with article 8. Article 8 guarantees, among other matters, the right to respect for a person's home. Article 14 guarantees that the rights set out in the Convention shall be secured 'without discrimination' on any grounds such as those stated in the non-exhaustive list in that article.

It goes without saying that article 14 is an important article of the Convention. Discrimination is an insidious practice. Discriminatory law undermines the rule of law because it is the antithesis of fairness. It brings the law into disrepute. It breeds resentment. It fosters an inequality of outlook which is demeaning alike to those unfairly benefited and those unfairly prejudiced. Of course all law, civil and criminal, has to draw distinctions. One type of conduct, or one factual situation, attracts one legal consequence, another type of conduct or situation attracts a different legal consequence. To be acceptable these distinctions should have a rational and fair basis. Like cases should be treated alike, unlike cases should not be treated alike. The circumstances which justify two cases being regarded as unlike, and therefore requiring or susceptible of different treatment, are infinite. In many circumstances opinions can differ on whether a suggested ground of distinction justifies a difference in legal treatment. But there are certain grounds of factual difference which by common accord are not acceptable, without more, as a basis for different legal treatment. Differences of race or sex or religion are obvious examples. Sexual orientation is another. This has been clearly recognised by the European Court of Human Rights: see, for instance, Fretté v France (2003) 2 FLR 9, 23, para 32. Unless some good reason can be shown, differences such as these do not justify differences in treatment. Unless good reason exists, differences in legal treatment based on grounds such as these are properly stigmatised as discriminatory.

Unlike article 1 of the 12th Protocol, article 14 of the Convention does not confer a free-standing right of non-discrimination. It does not confer a right of non-discrimination in respect of all laws. Article 14 is more limited in its scope. It precludes discrimination in the 'enjoyment of the rights and freedoms set forth in this Convention'. The court at Strasbourg has said this means that, for article 14 to be applicable, the facts at issue must 'fall within the ambit' of one or more of the Convention rights. Article 14 comes into play whenever the subject matter of the disadvantage 'constitutes one of the modalities' of the exercise of a right guaranteed or whenever the measures complained of are 'linked' to the exercise of a right guaranteed: Petrovic v Austria (2001) 33 EHRR 307, 318, 319, paras 22, 28.

These expressions are not free from difficulty. In R (Carson) v Secretary of State for Work and Pensions [2003] 3 All ER 577, 592-595, paras 32-41, Laws LJ drew attention to some difficulties existing...