Death of regulated tenant – Whether devoted homosexual partner entitled to succession rights – Whether claimant fell within definition of “spouse” or member of “family” – Claimant’s appeal dismissed
In 1971 T took a flat in London W6, under a tenancy which at all material times thereafter was a regulated tenancy governed by the Rent Act 1977. The appellant (F) moved into the flat in 1976 whereafter he lived with T as his devoted and caring homosexual partner, rendering over the last eight years of T’s life constant nursing services after T was left paralysed by severe head injuries and a stroke. T died in 1994. Wishing to remain in the flat, F made alternative claims under the succession provisions contained in the First Schedule to the 1977 Act, as amended. The first was to a statutory tenancy as claimable by a “surviving spouse”, F contending that he was, in the terms of para 2(2), inserted in 1988, “a person who was living with the original tenant as his or her wife or husband”. The alternative was to an assured tenancy as claimable under para 3(1) (subject to certain residence requirements) by “a person who was a member of the original tenant’s family “. Both claims failed in the county court and F appealed.
Held (by a majority) The appeal was dismissed.
1. A claim as “spouse” could not succeed as the 1988 amendment would have been differently worded if parliament had intended its extension to homosexual partnerships. Furthermore, the court could not depart from its own decision in Harrogate Borough Council v Simpson (1984) 17 HLR 205 whereby it rejected a claim arising out of a lesbian relationship to a secure tenancy under an almost identical provision in section 50 of the Housing Act 1980, since to do so would create an anomalous distinction between the two systems of residential protection.
2. F’s claim to be a member of T’s family derived some force from Dyson Holdings Ltd v Fox [1976] 2 EGLR 60 in which the Court of Appeal had found a family relationship to have arisen from a 21-year heterosexual partnership, and considered that the legal meaning of “family” could change with the passage of time. However it was doubtful, notwithstanding the wider social acceptance today of stable homosexual relationships, whether the ordinary person would have seen the relationship between F and T in a familial light. Moreover the court could not find in favour of F without discriminating, eg against a claimant friend whose devotion to the deceased could not be explained in sexual terms.
(Per Ward LJ dissenting) It was significant that, in contrast to the secure tenancy legislation, the 1977 Act left “family ” undefined. When construing social legislation the court should adopt the purposive approach taken eg by the New York Court of Appeal in Braschi v Stahl Associates Company (1989) NYS 2nd 784.
Jan Luba (instructed by John Ford) appeared for the appellant; Vivian Chapman (instructed by Belvederes) appeared for the respondent.
