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

(back to preceding text)

In my opinion this passage does not assist Mr. Blake. In 1920 the fact of homosexuals living together in permanent relationships was known to Parliament, and if a homosexual couple was not intended by Parliament to come within the term "family" at that date I do not consider that changed public attitudes towards homosexuality mean that a new state of affairs has come into existence which extends the meaning of that term.

    A further difficulty which confronts the argument on behalf of Mr. Fitzpatrick is that if it is correct and if the underlying purpose of the legislation is to provide a secure home for a person who shares his or her life with the tenant in a relationship of mutual affection, commitment and support, it is difficult to see why two elderly spinsters who live together for mutual support and companionship in old age without any sexual element in their relationship and who give each other devoted care should not qualify as members of the same family. I do not consider that the absence of a sexual relationship distinguishes such a case from the present one. The sexual relationship between a couple is a very important and enriching part of their life together, but I am unable to accept that there is such a distinction between an elderly homosexual couple who once had an active sexual relationship and two elderly spinsters who never had a sexual relationship that the homosexual couple should be regarded as members of each other's family and the spinsters should not. If the courts depart from the requirement of the link described by Russell L.J. and adopted by Lord Diplock it is difficult to discern what criterion would include one person residing with the tenant and exclude another.

    The jurisprudence of the European Commission of Human Rights and of the European Court of Justice does not assist the submissions advanced on behalf of Mr. Fitzpatrick. In XYZ v. United Kingdom (1997) 24 E.H.R.R. 143, 153, para. 53 the European Commission stated:

      "The Commission recalls that in a previous case it held that the relationship of a woman with the child of her long-term lesbian partner did not fall within the scope of family life, despite her sharing of a parental role. The Commission found that despite the evolution of attitudes towards homosexuality, a lesbian relationship did not fall within the scope of the term 'family life'. Accordingly, Article 8 did not import a positive obligation on a State to grant parental rights to a woman who was living with the mother of a child. While homosexual relationships could raise issues under the concept of 'private life', the Commission found that the restriction complained of did not reveal any curtailment of the enjoyment of their private life."

In Grant v. South West Trains Ltd. (1998) 3 B.H.R.C. 578, 594 the European Court of Justice stated:

      "33. The European Commission on Human Rights for its part considers that despite the modern evolution of attitudes towards homosexuality, stable homosexual relationships do not fall within the scope of the right to respect for family life under art 8 of the European Human Rights Convention (see especially the decisions in X v. UK (1983) 32 D. & R. 220, S v. UK (1986) 47 D. & R. 274 (para 2) and Kerkhoven v. the Nederlands App. No. 15666/89 (19 May 1992, unreported) (para 1)), and that national provisions which, for the purpose of protecting the family, accord more favourable treatment to married persons and persons of opposite sex living together as man and wife than to persons of the same sex in a stable relationship are not contrary to art 14 of the convention, which prohibits inter alia discrimination on the ground of sex (see the decisions in S v. UK (1986) 47 D. & R. 274 (para 7); C v. UK App. No. 14753/89 (9 October 1989, unreported) (para 2) and B v. UK (1990) 64 D. & R. 278 (para 2)). . . .

     35. It follows that, in the present state of the law within the Community, stable relationships between two persons of the same sex are not regarded as equivalent to marriages or stable relationships outside marriage between persons of opposite sex. . . ."

    It was submitted on behalf of Mr. Fitzpatrick that the decision in the present case would be confined to the construction to be given to the term "family" in the Rent Acts and that a decision allowing the appeal would not have wider implications. I am unable to accept that submission. I am of the opinion that a decision in the context of the Rent Acts by your Lordship's House that because of changing ways of life and social attitudes the homosexual partner of a deceased tenant was a member of the latter's family could have considerable implications for the social life of this country and in other spheres of the law. In D.P.P. v. Lynch [1975] A.C. 653 the issue was whether the defence of duress was open to a person charged with murder as a principal in the second degree. In dissenting judgments (which were subsequently followed in the unanimous decision of this House in Reg. v. Howe [1987] A.C. 417) Lord Simon of Glaisdale said at pages 695H-696A:

     "I am all for recognising frankly that judges do make law. And I am all for judges exercising this responsibility boldly at the proper time and place--that is, where they can feel confident of having in mind, and correctly weighed, all the implications of their decision, and where matters of social policy are not involved which the collective wisdom of Parliament is better suited to resolve (see Launchbury v. Morgans [1973] A.C. 127, 136F-137A, 137G)."

and Lord Kilbrandon said at page 700G:

     "It will not do to claim that judges have the duty--call it the privilege--of seeing to it that the common law expands and contracts to meet what the judges conceive to be the requirements of modern society. Modern society rightly prefers to exercise that function for itself, and this it conveniently does through those who represent it in Parliament."

I consider that those observations apply with equal force to the issue in the present case and that the decision whether for the purposes of the Rent Act a homosexual is now to be regarded as a member of his partner's family or whether the law should be changed in some other way to protect a homosexual partner on the death of the tenant is a matter for Parliament to decide.

    I fully recognise the strength of the argument, eloquently stated at the conclusion of Waite L.J.'s judgment at pages 318 and 319, that Parliament should change the law to give protection to the homosexual partner of a deceased tenant and also to other persons who lived with and gave devoted care to deceased tenants. But in my opinion such changes can only be made by Parliament and accordingly I would dismiss the appeal.


My Lords,

    In this action Mr Fitzpatrick claims a declaration that he has succeeded to the tenancy of the late Mr Thompson of the ground floor and basement flat at 75A Ravenscourt Road London W6. He submits that he has this entitlement by virtue of paragraphs 2 and 3 of the First Schedule to the Rent Act 1977 as amended by the Housing Acts 1980 and 1988:


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. 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."

He primarily submits that he is the "surviving spouse" of Mr Thompson because he was living with him "as his or her wife or husband" (paragraph 2(2)). Alternatively, he submits that he was residing with Mr Thompson "as a member of [his] family" (paragraph 3).

    The relevant facts are not in dispute. Mr Fitzpatrick and Mr Thompson were wholly unrelated. They had first met in June 1969 when Mr Fitzpatrick did some gardening jobs for Mr Thompson. In 1972 Mr Thompson became the tenant of the flat, entitled to the statutory protection of the Rent Acts. In late 1976, by which time they had become close friends and lovers, Mr Fitzpatrick moved in to live with Mr Thompson. Mr Thompson worked as a silversmith; Mr Fitzpatrick had a job as a security guard. In 1982 Mr Thompson (now in his late 50s) was made redundant and could not get another job. Mr Fitzpatrick changed his job to running a mobile snack bar, with which Mr Thompson helped. In January 1986, Mr Thompson had a bad fall injuring his head. He never recovered. He suffered a severe stroke. He was in a coma for a long time and after that never spoke again. He required constant care. Mr Fitzgerald was dissatisfied with the care which Mr Thompson was getting in hospital and in April 1986, having given up his job, took Mr Thompson back to the flat. Save for a short interruption, he continued to care for Mr Thompson himself until he died in November 1994.

    Their relationship was that of close friends and (at least up to January 1982) homosexual lovers. The depth of the relationship was demonstrated by the sacrifices which Mr Fitzpatrick made during the later years and the loving care he gave Mr Thompson up to his death. It appears that Mr Thompson had no relations or other friends to help care for him. No case of financial dependency in either direction has been alleged.

    The statutory provisions upon which Mr Fitzpatrick relies form part of a scheme for the transfer of protected tenancies following the death of the original tenant which Parliament has substantially revised from time to time. Since legislation of this type was first introduced in 1915, the provisions have gone through a number of versions and most of the decided cases have inevitably dealt with those earlier versions. In my judgment, the current wording must be construed having regard to the revised scheme of which it now forms part. Parliament has from time to time considered and decided to what extent the rights of succession should be increased or varied, most recently in 1988, and has amended the Act. The Act is social legislation. There are competing social policies and choices that are relevant to the decision what statutory rights of succession should be granted. The situation is complex. There are conflicting interests; indeed the subject matter of these provisions is private law property rights. Inevitably, boundaries have to be drawn which may on occasions give rise to hard cases.

    I mention this aspect not only because it is important but also because it is possible to have sympathy for those in the position of Mr Fitzpatrick. A social argument can be made on their behalf for sympathetic treatment. They are at least as meritorious as some of those who clearly come within the scheme. But likewise they are no less meritorious than some of those who clearly fall outside the scheme--devoted and caring friends who have lived for a long time with the tenant in the premises but have never engaged in sexual relations with the tenant. Similarly, some may argue that, in view of changing social attitudes to homosexual relationships, the time has come as a matter of policy to equate such relationships with heterosexual ones. But such matters are for Parliament, not the courts. It is an improper usurpation of the legislative function, for a court to adopt social policies which have not yet been incorporated in the relevant legislation.

    In the present case, the courts have been urged to extend by a process of liberal interpretation the concept of family to cover homosexual relationships and relationships of close long lasting friendship. It is submitted that the usage of the word "family" may vary from time to time and that it has no constant meaning: that accordingly it should now in 1999 be given an up-to-date meaning: that spouse includes a homosexual relationship "akin" to marriage: that immigration law has recently been revised to take account of such relationships. This type of argument and its proper limits were considered in the speech of Lord Wilberforce in Royal College of Nursing v. D.H.S.S. [1981] A.C. 800 at 822, to which we were referred by Mr Blake QC who appeared for Mr Fitzpatrick on this appeal. Lord Wilberforce said:

      "In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair assumption that Parliament's policy or intention is directed to that state of affairs. . . . When a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the Parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. . . . In any event there is one course which the courts cannot take, under the law of this country; they cannot fill gaps; they cannot by asking the question "What would Parliament have done in this current case--not being one in contemplation--if the facts had been before it?" attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself."

    Applying this to the present case, the relevant Act was passed in 1977 and has been amended since. On any view it is difficult to see what fresh set of facts has since come into existence. Homosexual relationships have been known about and existed throughout any relevant period of time and homosexual couples have shared accommodation. Not much has changed; the highest that it can be put is that the public attitude to such relationships has changed. This has nothing to do with any social policy concerning statutory tenancies by succession. If, contrary to what I have just said, it does have relevance, it is a matter for Parliament to consider not for the courts to ask themselves: 'What would Parliament do now?' But even then one has to take into account that this legislative scheme was amended as recently as 1988. What Parliament then chose to do was to amend paragraph 2 of the Schedule in terms which, as I will explain, are directly contrary to the main submission of the Appellant and affirm the necessarily heterosexual nature of the relevant relationship.

    In the Court of Appeal, Waite and Roch LJJ declined the invitation to adopt an extended interpretation of the statute: [1998] Ch. 304 at pp.318-319 and 324. I would happily quote what Waite LJ said in full but as it is already set out in the published reports will refrain from doing so. Waite LJ expressly accepted the criticisms of the Act but then went on to refer to some of the difficult policy decisions which would have to be made if the Act was to be revised to give effect to these criticisms. He asked: "If succession rights are to be extended to couples of the same sex in a sexually based relationship, would it be right to continue to exclude friends?" He concluded that: