Protected tenant and homosexual partner sharing flat – Protected tenant dying – Whether homosexual partner succeeding to tenancy – Whether partner falling within definition of “spouse” or “member of family” – Paras 2 and 3 of Schedule 1 to Rent Act 1977 as amended – Claim dismissed – Appeal allowed
In 1972 T was the original tenant of a flat in London W6. The tenancy was at all material times a regulated tenancy governed by the Rent Act 1977 (the Act), as amended by the Housing Act 1988. In 1976 the appellant moved into the flat. Thereafter, 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. T died in 1994. The appellant sought a declaration that he had succeeded to the tenancy under the Act. He claimed that he was entitled to a statutory tenancy as a “surviving spouse”, in that he had been living with T as “a person who was living with the original tenant as his or her wife or husband” within the terms of para 2(2) of Schedule 1 to the Act. He claimed alternatively that he was entitled to an assured tenancy under para 3 of Schedule 1 to the Act, as “a person who was a member of the original tenant’s family”.
The county court rejected the application, and the appellant’s appeal was dismissed by a majority of the Court of Appeal: [1997] EGCS 122; [1997] PLSCS 223. The appellant appealed contending that the word “spouse” in para 2 of Schedule 1 to the Act was to be interpreted in the present climate as including two persons of the same sex intimately linked in a relationship with all the indicia of a marriage save that the parties could not have children. In relation to the alternative claim under para 3 of Schedule 1 to the Act, it was contended that the intimacy of the relationship of two persons living together as T and he had been was such that they should be regarded as constituting a family.
Held: The appeal was allowed by a majority.
1. The word “spouse” in the context of para 2 of Schedule 1 to the Act meant 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”. That was intended to include persons, a man and a woman, not legally husband and wife, who lived as such without being married. The man had to show that the woman was living with him as “his” wife and vice versa. Parliament had not meant those words to be read as “my same-sex partner”. If that had been the intention, it would have been spelt out: Harrogate Borough Council v Simpson (1984) 17 HLR 205 affirmed.
2. It was clear from the authorities that the word “family” in para 3 of Schedule 1 to the Act was to be applied flexibly, and did not cover only legally binding relationships. As a matter of law, a same-sex partner of a deceased tenant could establish the necessary familial link. The hallmarks of a familial relationship were, essentially, a degree of mutual interdependence, the sharing of lives, caring and love, commitment and support. It was then a question of whether the necessary link had been established, and the onus was on the person claiming that he or she was a member of the same-sex original tenant’s family. That person had to establish, rather than merely assert, the necessary indicia of a familial relationship. Accordingly, the appellant was entitled to succeed to the tenancy: Gammans v Ekins [1950] 2 KB 328 and Dyson Holdings Ltd v Fox [1976] 2 EGLR 60 considered.
3. That conclusion would not have cataclysmic effects. It was in accordance with the contemporary notions of social justice, and, in other statutes and other contexts, the word family might not include two people of the same sex, whatever the circumstances.
Nicholas Blake QC and Jan Luba (instructed by John Ford) appeared for the appellant; Vivian Chapman (instructed by Belvederes) appeared for the respondent.
Thomas Elliott, barrister
