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

(back to preceding text)

    I refer to these judgments in order to show the attitudes being adopted in other jurisdictions and there are other examples. On the other hand, the European Convention of Human Rights refers to family and family life in Articles 8 and 12 and the Court of Human Rights has not so far accepted claims by same-sex partners to family rights. Leaving aside the fact that these cases are still in an early stage of development of the law and that attitudes may change as to what is acceptable throughout Europe, I do not consider that these decisions impinge on the decision which your Lordships have to take on a specific statutory provision.

    In this regard I refer to Attorney General of Canada v. Mossop 100 D.L.R. 4th 658 where the High Court of Canada held by a majority of four to three that the term "family status" in the Canadian Human Rights Act does not include a homosexual relationship between two individuals. Lamer, C.J. (of the majority), however, concluded at p. 674:

     "Nor should this decision be interpreted as meaning that homosexual couples cannot constitute 'a family' for the purposes of legislation other than the C.H.R.A. In this regard, each statute must be interpreted in its own context".

    Sopinka, J. and Jacobucci, J. agreed with Lamer, C.J.

    It seems to be suggested that the result which I have so far indicated would be cataclysmic. In relation to this Act it is plainly not so. The onus on one person claiming that he or she was a member of the same-sex original tenant's family will involve that person establishing rather than merely asserting the necessary indicia of the relationship. A transient superficial relationship will not do even if it is intimate. Mere cohabitation by friends as a matter of convenience will not do. There is, in any event, a minimum residence qualification; the succession is limited to that of the original tenant. Far from being cataclysmic it is, as both the County Court judge and the Court of Appeal appear to recognise, and as I consider, in accordance with contemporary notions of social justice. In other statutes, in other contexts, the same meaning may or not be the right one. If a narrower meaning is required, so be it. It seems also to be suggested that such a result in this statute undermines the traditional (whether religious or social) concept of marriage and the family. It does nothing of the sort. It merely recognises that, for the purposes of this Act, two people of the same sex can be regarded as having established membership of a family, one of the most significant of human relationships which both gives benefits and imposes obligations.

    It is plain on the findings of the County Court judge that in this case, on the view of the law which I have accepted, on the facts the appellant succeeds as a member of Mr. Thompson's family living with him at his death.

    On that ground I would allow the appeal.


My Lords,

    This appeal raises an important point on the interpretation of a provision in the Rent Acts. For many years certain residential tenants have enjoyed the benefits of fair rentals and protection from eviction conferred by successive Rent Acts. Ever since the earliest days of this legislation in 1920, these benefits have not been confined to the original tenant. Under the Increase of Rent and Mortgage Interest (Restrictions) Act 1920, section 12(1)(g), 'tenant' included the widow of a tenant in certain circumstances and, in other cases, such 'member of the tenant's family' residing with him when he died as might be agreed or decided by the court. In addition to protecting the tenant personally, Parliament has always been concerned to protect the family unit of which the deceased tenant was part.

    The language chosen for this purpose was the undefined expression 'family'. This expression is not a term of art; that is, it is not a technical term with a specific meaning. It is a word in ordinary usage, with a flexible meaning. The statutory succession provisions have been amended several times, but to this day family has remained unamended, undefined and unparticularised. Parliament has left it to the courts to determine, in any given case, whether a particular individual falls within the description. The current legislative provisions are to be found in Schedule 1 of the Rent Act 1977, as amended by the Housing Act 1988. The relevant phrase in paragraph 3 is 'a person who 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 2 years immediately before his death'. There are differences between the extent of the protection enjoyed by a surviving spouse as a statutory tenant under paragraph 2 and the more limited protection now accorded to a member of the original tenant's family as the holder of an assured tenancy under paragraph 3. Nothing turns on this distinction for present purposes.

    Family is a word with several different meanings. In some contexts family means children ('when shall we start a family?'). In other contexts it means parents and children ('accommodation suitable for families'). It may mean all persons connected, however remotely, by birth, marriage or adoption ('family tree'). The present context is statutory protection of the occupancy of a dwelling house that is a family home. On the death of the tenant his family cannot be evicted without further ado.

    Herein lies the key to the meaning of family in this context. The key is the statutory juxtaposition of membership of the tenant's family and residence with the tenant. The legislation seeks to provide a measure of protection for members of a family who are sharing their lives together as a single family in one home. In this context children will readily qualify. More remote blood relations of the tenant may also qualify if they satisfy this 'sharing' criterion. For instance, a nephew or niece, the child of a deceased brother or sister, might have come into the tenant's home at an early age and become part of his family. Or a widowed or unmarried man might live with his married brother and the brother's wife and children. Or an unmarried brother and sister might have lived together throughout their lives. Thus, in the early decision of Price v. Gould (1930) 143 L.T. 333 Wright J. decided that sisters and brothers living together qualified for protection.

    This, then, is the first point to note. Although there are hints of a different view in some of the cases, in the context of the purpose of this legislation blood relations are not divided into fixed categories, with near relations ranking as family and more distant relations not. The closer the blood relationship, the easier it may be for the court to identify the existence of the necessary family relationship or familial nexus, as it is sometimes described. More remote kin are not excluded, although in practice the more remote the kinship the less frequently will they be found sharing their lives together as a family in one home. Langdon v. Horton [1951] 1 K.B. 666 is an instance of this. First cousins, sharing a residence for purposes of convenience, were held not to qualify.

    The second point to note is that membership of a family for this purpose is not confined to blood relations. The relationship may be one of marriage. Indeed, the paradigm family unit was, and still is, a husband and wife and their children. The wife, as well as the children, is a member of the husband's family. Conversely, the husband and the children are members of the wife's family. But children are not essential for the existence of a family for the present purpose. The purpose of the legislation requires that, even in the absence of children, a spouse may qualify. This accords with one of the earliest decisions on these provisions. In 1925, before a widower of the tenant was expressly mentioned in the legislation, Salter J. held that the tenant's husband came within the statute: see Salter v. Lask [1925] 1 K.B. 584. This also accords with the provisions applicable when a lessor seeks a possession order on the ground that alternative accommodation is available for the tenant. Alternative accommodation must be reasonably suitable for the needs of the tenant and his 'family': see the Rent Act 1977, section 98(1)(a) and part IV of Schedule 15. It would be absurd if the tenant's wife did not count as family for this purpose.

    The next point to note is that family is not limited to blood relations and the tenant's spouse. 'In-law' relationships may qualify. 'Welcome to the family' is a customary greeting to the bride or groom on the wedding of a son or daughter. A daughter-in-law, living with the tenant, must be able to qualify as much as the son of the tenant to whom she is married. A son-in-law may likewise qualify. In Jones v. Whitehill [1950] 2 K.B. 204 a niece-in-law was held entitled to succeed. The Court of Appeal expressly rejected the argument that family was confined to blood relations. 'Step' relationships such as step-children may also qualify, as may children who have been formally adopted. Parliament cannot intend that the tenant's own child may qualify but a duly adopted child or a step-child may not.

    Having regard to the purpose of the legislation, the width of the meaning borne by the expression family does not stop here. As one might expect, the authorities have not drawn a rigid line at this point. A child who is adopted in fact, although not in law, may be as much a member of the tenant's family as a duly adopted child. The Court of Appeal so decided in 1949 in Brock v. Wollams [1949] 2 K.B. 388. More pertinent for present purposes, a man and woman, unmarried but living together as husband and wife, are capable of constituting family. In Hawes v. Evenden [1953] 1 W.L.R. 1169 the Court of Appeal upheld a decision of a county court judge that the mistress of a man by whom she had had two children was a member of his family for this purpose. The court held there was evidence justifying the judge's finding that they had all lived together as a family. Somervell L.J., at page 1171, identified this as the key factor. Given that factual finding, the court's conclusion must surely be right. A man and woman living together with their children constitute a family for this purpose even though they are unmarried.

    Three years earlier, in Gammans v. Ekins [1950] 2 K.B. 328, the Court of Appeal reached the contrary conclusion regarding a childless couple. A quarter of a century later, in 1975, the Court of Appeal had to consider again the position of an unmarried childless couple. In Dyson Holdings Ltd. v. Fox [1976] Q.B. 503 a man and woman had lived together as husband and wife for nearly 20 years. The court preferred the approach adopted in Hawes v. Evenden. Expressing himself with his customary simplicity and cogency, Lord Denning M.R. trenchantly criticised a distinction based on the mere absence of children. He said, at page 509:

     'That means this: if the couple had a baby 19 years ago which died when a few days old, or as a young child, the woman would be a "member of the tenant's family"; but if the baby had been still-born, or if the woman had a miscarriage 19 years ago, she would not be a member of his family. Yet for the last 19 years they had lived together as man and wife. That seems to me a ridiculous distinction. So ridiculous, indeed, that it should be rejected by this court: and that we should hold that a couple who live together as man and wife for 20 years are members of the same family, whether they have children or not.'

    In my view the approach adopted in the Dyson case, as set out above, is unanswerably correct. The legislative purpose, of protecting members of a family unit in their occupation of a house, requires that a couple living together but without children should be as capable of qualifying for protection as a couple living together with a child. The Dyson approach has been followed in several reported cases and, no doubt, numerous unreported decisions. All the reported cases rightly stress the need for a permanent and stable relationship: see, for instance, Helby v. Rafferty [1979] 1 W.L.R. 13, Watson v. Lucas [1980] 1 W.L.R. 1493 and Chios Property Investment Co. Ltd. v. Lopez (1987) 20 H.L.R. 120. Since then Parliament has made express provision, by the Housing Act 1988, for this type of case. The surviving spouse of the original tenant, if living in the house at the tenant's death, becomes the statutory tenant. For this purpose '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': see paragraph 2(2) of Schedule 1 to the Rent Act 1977, as inserted by the Housing Act 1988, section 39(2) and paragraph 2 of Part 1 of Schedule 4.

    I interpose that, in agreement with all your Lordships, I do not accept that the appellant falls within the extended meaning given to spouse by paragraph 2(2). The surviving spouse of the original tenant was the person to whom the original tenant was married when he or she died. Paragraph 2(2) extends this to include persons who conducted themselves as husband and wife although they were not married. Marriage, spouse, husband and wife are all terms connoting a relationship between a man and a woman, that is, between two persons of opposite sex. A husband is a man and a wife is a woman. These are, in this context, gender-specific words. This approach accords with the view of the Court of Appeal in Harrogate Borough Council v. Simpson (1984) 17 H.L.R. 205. The court was considering a phrase in section 30 of the Housing Act 1980 that is different in detail but substantially to the same effect ('. . . if they live together as husband and wife').

    This is the background against which a decision has to be made in the present case. The above discussion shows that the courts have given a wide and elastic meaning to family in the present context. Rightly so, because the legislation would fail to cover the whole of the target intended to be protected if family were given a narrow or rigid meaning. Such a meaning would fail to reflect the diverse ways people, in a multi-cultural society, now live together in family units.

    The question calling for decision in the present case is a question of statutory interpretation. It is whether a same sex partner is capable of being a member of the other partner's family for the purposes of the Rent Act legislation. I am in no doubt that this question should be answered affirmatively. A man and woman living together in a stable and permanent sexual relationship are capable of being members of a family for this purpose. Once this is accepted, there can be no rational or other basis on which the like conclusion can be withheld from a similarly stable and permanent sexual relationship between two men or between two women. Where a relationship of this character exists, it cannot make sense to say that, although a heterosexual partnership can give rise to membership of a family for Rent Act purposes, a homosexual partnership cannot. Where sexual partners are involved, whether heterosexual or homosexual, there is scope for the intimate mutual love and affection and long-term commitment that typically characterise the relationship of husband and wife. This love and affection and commitment can exist in same sex relationships as in heterosexual relationships. In sexual terms a homosexual relationship is different from a heterosexual relationship, but I am unable to see that the difference is material for present purposes. As already emphasised, the concept underlying membership of a family for present purposes is the sharing of lives together in a single family unit living in one house.

    A similar conclusion was reached in 1989 by the New York Court of Appeals in its majority decision in Braschi v. Stahl Associates Co. 544 N.Y.S. 2d 784 (Ct. App. 1989). The New York non-eviction legislation was expressed in terms substantially the same as the Rent Act legislation of this country.