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

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     "Few would support the potential for unfairness involved in a law which gives automatic succession rights to wives, however faithless, and children, however feckless, and at the same time denies any hope of succession to friends, however devoted their loyalty to the joint household. The judge was nevertheless right, in my view, to resist the temptation to change a bad law by giving it a new linguistic twist. He correctly acknowledged that such changes could only be made by Parliament."

I consider that Waite and Roch LJJ were, like the Judge, right to resist the temptation.

    But Ward LJ. was unable to do so. He, by contrast, felt at liberty to give effect to his own views and to make his own value judgments as to the appropriate treatment of homosexual relationships having regard to the changes in social attitudes. He also felt that he was entitled to refer to and take into account parliamentary debates and other material subsequent to 1980 notwithstanding that no warrant for such an approach was given by Pepper v. Hart [1993] A.C. 593 nor by any accepted canon of construction of statutes. His judgment serves to reinforce the correctness, and wisdom, of what was said by the majority.

    No argument has been advanced in the present case based upon any submission that the legislation is improperly discriminatory. Such questions may arise hereafter but the arguments in the present case are based solely upon submissions as to the correct construction of the statute as amended.

    As regards the first way in which Mr Fitzpatrick puts his case--that he was Mr Thompson's "spouse" or was living with Mr Thompson "as his or her wife or husband"--I agree with what has already been said by your Lordships. They were living together as a homosexual couple. Harrogate B.C. v. Simpson (1984) 17 H.L.R. 205, where the Court of Appeal had to consider the parallel provisions in Part IV of the Housing Act 1980, was rightly decided and remains good law. To accept the submission of Mr Fitzpatrick would be an exercise of legislation, not interpretation. I therefore need not say more about the argument which Mr Fitzpatrick put in the forefront of his case on this appeal.

    I must however say something more about paragraph 2 since, as already observed, it has been preceded by different provisions. The 1977 Rent Act and its predecessors used the word "widow". The Housing Act 1980 amended the right to succession to cover surviving spouses; ie it was extended to widows and widowers. The gender distinction was removed. Then in 1988, it was amended again to cover a person living with the tenant as his or her wife or husband. This extension brought in de facto relationships and removed the requirement that the parties should have been legally married. It thus subsumed the decision of the Court of Appeal in Dyson Holdings Ltd. v. Fox [1976] Q.B. 503. But it still required a heterosexual relationship equivalent to marriage. Parliament did not go so far as to extend the provision to homosexual relationships akin to marriage nor to friendships, however close or long lasting, not accompanied by the additional factor of living together as husband and wife. The criterion of as "husband and wife" was retained and confirmed. (See also In re the Estate of John Watson (Deceased), The Times, 31 December 1998, cited by Mr Blake, where Neuberger J used reasoning wholly inconsistent with extending the category beyond heterosexual relationships.)

    The policy disclosed by the 1988 revision is thus to recognise factual as well as legal relationships but to continue to require that they correspond to the heterosexual concept of legal marriage. This policy appears to adopt and conform to the decision and statements of principle in the speech some years earlier of Lord Diplock (agreed to by the other members of the House) in Carega Properties v. Sharratt [1979] 1 W.L.R. 928, to which I will come shortly.

    As will already be apparent from my reference to Part IV of the Housing Act 1980 and the Harrogate B.C case, there were precedents for the type of language used for the 1988 amendment. Another was the first Schedule to the Supplementary Benefits Act 1976. In the case Crake v. Supplementary Benefits Commission [1982] 1 All E.R. 498, Woolf J had to consider that Schedule and whether the relevant person was living with the applicant as husband and wife. The facts were that the man was a longstanding friend of the applicant who, after she had been seriously injured in a road accident and her daughter was no longer able to look after her, moved in to her home and lived there, looking after her and the house, indeed doing all the things that a husband would do for a sick wife. It was not a commercial arrangement. But they had no sexual relationship; they were not living as husband and wife. Therefore the claim to the supplementary allowance failed. The functional argument was rejected.

    Turning now to paragraph 3, it covers (and gives certain limited rights to) a person who does not come within paragraph 2 but is a member of the tenant's family. Following through the policy of the legislation, this extension covers those who are in a legal or de facto relationship to the tenant of blood or affinity. The legal relationships are thus the parents and grandparents, the issue, natural and adopted, of the tenant or of his or her spouse, their respective siblings, nephews and nieces and the spouses of such persons. The factual relationships are the same--informally adopted children and (usually) children for whom the tenant has parental responsibility--and persons with whom the tenant would have had a relationship of affinity if the tenant was legally married to the person with whom he or she is living as his or her husband or wife.

    But, for the purposes of paragraph 3, the relationship, whether of blood or affinity, must be an actual one. The person must actually be a member of the tenant's family; it is not enough that he or she be living with the tenant as if he or she was a member of the tenant's family. (Sefton Holdings Ltd. v. Cairns (1987) 20 H.L.R. 124) This is not in dispute.

    In Carega, the defendant whom the landlord was seeking to dispossess was in no blood relationship to the deceased tenant, an elderly widow with whom he had gone to live 18 years earlier. Their relationship was one of close friendship, platonic and filial. He had been 24 when he first came to know her. She would have liked to speak of him as her son but this was not acceptable to him because his mother was still alive. He therefore called her Aunt Nora. He was financially independent of her; his motive during the 18 years he lived with her in her flat was simply kindness and affection. The County Court judge had decided in favour of the defendant on the ground that he was a member of her family. The Court of Appeal reversed that decision.

    In the House of Lords, Lord Diplock opened his speech by saying:

      "My Lords, the only question in this appeal is one of construction of the Rent Act 1968. It is whether a person between whom and the deceased statutory tenant of a dwelling house there is no connection by way of consanguinity, of affinity, of adoption (de jure or de facto) during minority or of regular sexual intercourse (past or present) can be a member of the tenant's family within the meaning of Schedule 1, paragraph 3 to the Act, so as to entitle him to become the statutory tenant of the dwelling house by succession to the deceased."

    Lord Diplock is thus listing the established parameters of the concept of family and saying that the House has to decide whether they should be extended. He refers to two de facto categories: that which arises from adopting a child during its minority and that which arises from regular sexual intercourse past or present. This last category has now been subsumed into living "as his or her wife or husband". A sexual relationship not amounting to living together as husband and wife will not suffice but living together as husband and wife will suffice even if the parties choose not to have sexual intercourse (as may also be the case in a legal marriage). Lord Diplock declined to enter upon a discussion of the correctness of the decision of the Court of Appeal in Dyson Holdings Ltd. v. Fox [1976] Q.B. 503 and as I have said that particular question has now been resolved by statutory amendment.

    There are other cases which illustrate the position summarised by Lord Diplock.

    Some early cases under the legislation equated membership of a tenant's family with membership of his household. On this reasoning it could even extend to his servants or lodgers. (Stewart v. Mackay, 1947 S.C. 287) But these opinions were clearly wrong and cannot be sustained; they would amount to substituting a judicial policy for that contained in the legislation. They cannot now be supported nor did the Appellant seek to do so. They are clearly inconsistent with later and superior authority. See, for example, Ross v. Collins [1964] 1 W.L.R. 425, where a devoted housekeeper of many years standing was held to be not entitled to succeed to the tenancy: "there was no family relationship of any kind". (p.430, per Pearson LJ)

    The word "family" is as has often been said not a term of art but describes a unit which has the familial characteristics. One such characteristic is the existence of blood relationships. Thus, in Hawes v. Evenden [1953] 1 W.L.R. 1169, a group which consisted of the tenant, his mistress of some 12 years and their two children was easily recognised as being a family. (cf Gammans v. Ekins [1950] 2 K.B. 328.) In Brock v. Wollams [1949] 2 K.B. 388, a woman, who had at the age of 5 in 1912 been informally adopted by the tenant and brought up as his daughter and who returned later in her life (after her husband had died) to live with the tenant, was held to be a member of his family, even though not a blood relation. It was his de facto adoption of her whilst a child that made her a part of his family.

    The limits upon the ambit of the word family were most forcefully expressed in the case of Gammans (sup). A childless couple were living together as man and wife but they had not married. The woman was not part of the man's family. Asquith LJ using language which would scarcely be acceptable today unequivocally rejected the idea that mere friendship or a sexual relationship between two people of the same or a different sex could amount a family. He and the other members of the Court of Appeal affirmed that the concept of family must involve blood or affinity. The only exception was relationships whereby one person becomes in loco parentis to another, eg Brock v. Wollams (sup).

    Returning to the speech of Lord Diplock in Carega, he left open the questions raised by the case of Dyson v. Fox (p.930). As I have already observed, the legislature has, by the amendments which it has chosen to make to the 1977 Act, already addressed the implications of that decision. Lord Diplock's ratio decidendi follows on a reference to the cases Gammans v. Ekins and Ross v. Collins. Lord Diplock chose to adopt as his own what was said by Russell LJ in the second of those cases:

     "Granted that 'family' is not limited to cases of a strict legal familial nexus, I cannot agree that it extends to a case such as this. It still requires, it seems to me, at least a broadly recognisable de facto familial nexus. This may be capable of being found and recognised as such by the ordinary man-where the link would be strictly familial had there been a marriage, or where the link is through adoption of a minor, de jure or de facto, or where the link is 'step-,' or where the link is 'in-law' or by marriage. But two strangers cannot, it seems to me, ever establish artificially for the purposes of this section a familial nexus by acting as brothers or as sisters, even if they call each other such and consider their relationship to be tantamount to that. Nor, in my view, can an adult man and woman who establish a platonic relationship establish a familial nexus by acting as a devoted brother and sister or father and daughter would act, even if they address each other as such and even if they refer to each other as such and regard their association as tantamount to such. Nor, in my view, would they indeed be recognised as familial links by the ordinary man."

This ratio decidendi is binding upon your Lordships. It is inconsistent with the arguments of Mr Fitzpatrick. Living together as homosexual lovers is not a familial relationship. It is a different relationship: for present purposes, as counsel said, no better and no worse--no less or more meritorious, just different. At one stage of his submissions Mr Blake expressly disavowed any reliance upon the existence of sexual relations between Mr Fitzpatrick and Mr Thompson. But Mr Blake would have been wrong to abandon, if this was what he was doing, this plank of his case. Absent a sexual relationship, the relationship would have been no more than one of caring friendship which on any view does not suffice. He has to be able to say that the existence of a (formerly active) homosexual relationship makes all the difference. Stripped of that feature he cannot, on the English authorities, succeed.

    It is understandable why Mr Blake shrank from putting his client's case in that way. It would expose the degree of the extension of the previous authorities for which he has to contend and points up the lack of support for his argument in the drafting of paragraphs 2 and 3 of the Schedule. If Parliament had wished to take this further radical step, extending the rights of succession to protected tenancies, it would have given some hint of its intention in the amendments which it made after 1977. It has manifested no such intention. The Dyson decision has been recognised by the Legislature in its amendment of paragraph 2. The argument of Mr Blake would seem to treat as family two persons of the opposite sex living together in the same flat or house who have or have had a long term stable sexual relationship but do not choose to be known as man and wife. Regardless of the reason for their choice, paragraph 2(2) makes it essential that each should be living as the wife or husband of the other. If your Lordships are being asked to say that nevertheless the survivor should still qualify as family under paragraph 3 on the strength of the decision in Dyson, the invitation should in my judgment be rejected. The amendment to paragraph 2 has laid down the relevant criterion which the relationship must satisfy. By a parity of reasoning, the Dyson case does not now provide Mr Fitzpatrick with a route down which he can pass asserting an equivalence between homosexual and heterosexual relationships.

    The word "family", as I have previously observed, is not a term of art. It is a word which is used to refer to a scheme of relationships having certain characteristics. All those characteristics may not be present in every case; this is the nature of descriptive words. But in any case there must be sufficient of the relevant characteristics to justify the application of the descriptive term. In deciding a legal question it is necessary to decide on which side of the line the individual case falls. This exercise is not one of choosing what social policy to support. It involves looking at the language of the statute construed in its legislative context and having regard to the previous decisions of the courts. The decided authorities have told us what the relevant characteristics are. The legislative context has been made clear by the history of the amendments made. The fundamental difficulty for Mr Fitzpatrick is that he is seeking to establish a legal right against the owners of the property, the Plaintiffs in the action, based upon the advocacy of a social policy which may one day be adopted by the Legislature but which has not yet been incorporated in legislation and which anticipates the essential policy and drafting decisions which would have to be taken by the Legislature.

    Finally, I should shortly refer to certain legal decisions from other jurisdictions upon which Mr Blake sought to rely. These citations did not assist Mr Fitzpatrick's case.

    Mr Blake strongly relied upon the approach of the Court of Appeals of New York in Braschi v. Stahl Associates (1989) 544 N.Y.S. 2d 784. In a similar context, occupancy rights to a rent controlled apartment, the court adopted a broad approach to the application of the word family as being a relationship characterised by emotional and financial commitment and interdependence and not limited to persons connected by blood or law. However, the reasoning of the judgment of Judge Titone shows, unsurprisingly, that the law of New York is inconsistent with decided English cases. At p. 789 of the report, he adopts definitions of "family" from Webster's Dictionary--"a group of people united by certain convictions or common affiliation"--and from Black's Law Dictionary--"the collective body of persons who live in one house and under one head or management". By such criteria households of close friends are to be treated as families; this is not the law of England nor is it suggested that it is.

    The other class of citation made by Mr Blake was from decisions of the European Court of Human Rights and the European Court of Justice. In X, Y & Z v. The United Kingdom (1997) 24 E.H.R.R. 143, it was alleged that the refusal to register a female to male transsexual ('X') as the father of a child ('Z') born to the woman ('Y') with whom the transsexual was living was a breach of Article 8 of the Convention guaranteeing the right to family life. The child had been conceived by AID from an anonymous donor. The Court recognised that the previous decisions of the Court had not gone so far as to hold that a homosexual relationship was a family relationship: see paragraphs 52 and 53 of the Commission's opinion and paragraph 34 of the judgment and Kerkhoven v. Netherlands (19.5.92). The Court held that there was a family unit in the case before it because of the fact that the couple were living as husband and wife and the presence of the child Z with whom X was living as her father. The Court therefore accepted the applicability of Article 8 but went on to hold that there had been no breach. The reasoning of the judgment is in line with the English law and is inconsistent with Mr Blake's submissions. A homosexual couple living together does not constitute a family. As regards the right to marry (Article 12), the Court has affirmed the heterosexual character of marriage and has refused both under Article 12 and Article 8 to treat same sex couples, even where one is a transsexual, as the same as heterosexual couples. (Sheffield and Horsham v. United Kingdom (1998) 27 E.H.R.R. 163.

    In Grant v. South West Trains 3 B.H.R.C. 578, the European Court of Justice was concerned with an allegation that concessionary fares granted to heterosexual couples, married or unmarried, was unlawfully discriminatory against homosexual couples. The allegation was rejected because the relationships were not equivalent. The Strasbourg jurisprudence was referred to as well as previous decisions of the ECJ. The Court held:

      "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."

Here again the citation does not assist Mr Fitzpatrick. Indeed it underlines that the developments for which he contends involve developments of policy and fall far outside the proper ambit of statutory construction.

    I would dismiss the appeal and uphold the judgments of the majority in the Court of Appeal.


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