Statutory tenancy — Homosexual couple — Whether survivor succeeding to tenancy on death of partner — Para 2(2) of Schedule 1 to Rent Act 1977 — Whether discrimination contrary to Articles 14 and 8 of European Convention on Human Rights — Section 3 of Human Rights Act 1998 — Whether para 2(2) to be read in a manner compatible with Convention rights — Appeal dismissed
The respondent lived with his partner in a stable and monogamous homosexual relationship. They occupied a flat let to the partner by the appellant as landlord. Upon the death of the respondent’s partner, the appellant brought proceedings claiming possession of the flat. The judge held that the respondent did not succeed to the tenancy as a surviving spouse under para 2 of Schedule 1 to the Rent Act 1977, and could not, therefore, claim a statutory tenancy. Para 2(2) provided: “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”. The judge found that the respondent was entitled to a less beneficial assured tenancy by succession as a member of the original tenant’s “family” under para 3(1) of Schedule 1. The respondent’s appeal against that decision was allowed, and the Court of Appeal found him to be entitled to a statutory tenancy under para 2. The appellant appealed.
Held (Lord Millett dissenting): The appeal was dismissed.
1. On an ordinary reading of the language of the statute, and on the interpretation in Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27, para 2(2) appeared to draw a distinction between the position of a heterosexual couple living together in a house as husband and wife and a homosexual couple living together in a house; the survivor of a heterosexual couple could become a statutory tenant by succession, while the survivor of a homosexual couple could not. That disparity in treatment amounted to discrimination contrary to Article 14, read with Article 8, of the European Convention on Human Rights. The legitimate social aim behind security of tenure for the survivor of an unmarried heterosexual couple was equally applicable to the survivor of a homosexual relationship: in both cases, the couple shared each others’ lives and made their home together. They had an equivalent relationship, and there was no rational or fair ground for distinguishing the one from the other in that context.
2. In the circumstances, the court was obliged to depart from the interpretation of para 2 in Fitzpatrick in order to comply with its duty, under section 3 of the Human Rights Act 1998, to read and give effect to legislation “so far as it is possible to do so” in a manner compatible with Convention rights. Section 3 enabled language to be interpreted restrictively or expansively. The mere fact that the language of a statute was inconsistent with a Convention-compliant meaning did not, of itself, make a Convention-compliant meaning impossible under section 3. Section 3 was also apt to require a court to read in words that changed the meaning of the enacted legislation to achieve a Convention-compliant result, so long as the court did not adopt a meaning inconsistent with a fundamental feature of the legislation. The meaning imported by the application of section 3 had to be compatible with the underlying thrust of the legislation being construed. Given that the social policy behind para 2(2) was equally applicable to homosexual couples living together in a close and stable relationship, that paragraph should be read and given effect as though the survivor of a homosexual relationship were the surviving spouse of the original tenant.
Monica Carrs-Frisk QC and Jonathan Small (instructed by Hugh Cartwright & Amin) appeared for the appellant; Rabinder Singh QC and Paul Staddon (instructed by Oliver Fisher) appeared for the respondent.
Sally Dobson, barrister
