Fitzpatrick v Sterling Housing Association [1999] UKHL 42

Mr Fitzpatrick, who had lived in a long-term homosexual relationship with the deceased tenant Mr Thompson for 18 years and cared for him devotedly until his death, sought to succeed to the tenancy. The House of Lords held he could not be treated as a 'spouse' but was a 'member of the family' entitled to an assured tenancy.

Facts

Mr Martin Fitzpatrick and Mr John Thompson lived together in a flat at 75A Ravenscourt Road, London from 1976 until Mr Thompson’s death in November 1994. Their relationship was described in agreed facts as a ‘long-standing, close, loving and faithful, monogamous, homosexual relationship’. In 1986, Mr Thompson suffered a serious fall resulting in a stroke from which he never recovered. Mr Fitzpatrick gave up his job and cared for Mr Thompson full-time for eight years until his death. After Mr Thompson’s death, Mr Fitzpatrick sought to succeed to the statutory tenancy under the Rent Act 1977, as amended.

Issues

First Issue

Whether Mr Fitzpatrick was a person ‘living with the original tenant as his or her wife or husband’ within paragraph 2(2) of Schedule 1 to the Rent Act 1977, entitling him to be treated as a surviving spouse.

Second Issue

Whether Mr Fitzpatrick was ‘a member of the original tenant’s family’ within paragraph 3(1) of Schedule 1, entitling him to an assured tenancy by succession.

Judgment

On the First Issue

The House of Lords unanimously held that Mr Fitzpatrick could not qualify as a spouse under paragraph 2(2). Lord Slynn stated:

‘Spouse’ means in my view legally a husband or wife. The 1988 Amendment extended the meaning to include as a ‘spouse’ a person living with the original tenant ‘as his or her wife or husband’. This was obviously intended to include persons not legally husband and wife who lived as such without being married. That prima facie means a man and a woman.

Lord Nicholls observed:

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.

On the Second Issue

By a majority of three to two (Lord Slynn, Lord Nicholls and Lord Clyde; Lord Hutton and Lord Hobhouse dissenting), the House held that Mr Fitzpatrick was a member of Mr Thompson’s family for the purposes of paragraph 3(1).

Lord Slynn identified the hallmarks of family membership:

The hall marks of the relationship were essentially that there should be a degree of mutual inter-dependence, of the sharing of lives, of caring and love, of commitment and support.

Lord Nicholls stated:

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.

Lord Clyde explained:

It seems to me that essentially the bond must be one of love and affection, not of a casual or transitory nature, but in a relationship which is permanent or at least intended to be so.

The dissenting judges, Lord Hutton and Lord Hobhouse, considered that extending ‘family’ to include homosexual partners was a matter for Parliament, not the courts. Lord Hobhouse stated:

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.

Implications

This landmark decision recognised for the first time that a same-sex partner could be considered a member of the tenant’s family for the purposes of the Rent Act succession provisions. However, the distinction remained that only heterosexual couples could qualify as ‘spouses’ under paragraph 2, receiving full statutory tenancy rights, while same-sex partners could only qualify as ‘family members’ under paragraph 3, receiving the lesser protection of an assured tenancy. The case marked a significant step in the legal recognition of same-sex relationships in the United Kingdom, though it left questions about potential discrimination under the European Convention on Human Rights for future consideration following the implementation of the Human Rights Act 1998.

Verdict: Appeal allowed by majority (3-2). Mr Fitzpatrick was held not to be a ‘spouse’ within paragraph 2(2) of Schedule 1 to the Rent Act 1977 (unanimous), but was held to be ‘a member of the original tenant’s family’ within paragraph 3(1) (majority), entitling him to an assured tenancy of the dwelling-house by succession.

Source: Fitzpatrick v Sterling Housing Association [1999] UKHL 42