Death of original tenant — Tenant’s homosexual partner awarded assured tenancy — Whether different treatment of heterosexual and homosexual partner in same circumstances discrimination for purposes of Article 14 of European Convention on Human Rights — Appeal allowed
In April 1983, the respondent’s father granted a tenancy of premises to the appellant’s partner. The appellant and his partner, who were in a long-term homosexual relationship, moved into the premises together. Upon his partner’s death, the appellant was awarded an assured tenancy under paras 2 and 3 of Schedule 1 to the Rent Act 1977, which provided that a surviving spouse would be awarded a statutory tenancy, whereas other members of the original tenant’s family would be awarded a less beneficial assured tenancy. Although the judge at first instance found that the appellant and his partner were in a relationship akin to marriage, he held himself bound to follow the House of Lords’ decision in Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27. In that case, it was held that the term “spouse”, for the purposes of awarding a statutory tenancy under para 2 of Schedule 1, although applicable to non-married partners, would not apply to a partner in a same-sex relationship.
The appellant appealed that decision on the basis that, had the relationship been heterosexual, he would have succeeded to a statutory tenancy, and that he was therefore being discriminated against contrary to Article 14 of the European Convention on Human Rights (freedom from discrimination).
Held: The appeal was allowed.
The basic question for the court’s consideration was whether discrimination on the ground of sexual orientation was excluded from the protection of Article 14. In order to answer that question, it was necessary to consider the test set out in Michaelek v Wandsworth London Borough Council [2002] EWCA Civ 271; [2002] HLR 39 that is (i) did the facts fall within the ambit of one or more of the substantive Convention provisions; (ii) if so, was there differential treatment, with respect to that right, between the complainant and other persons (comparators) put forward for comparison; (iii) were the chosen comparators in an analogous situation to that of the complainant; and (iv) if so, did the differential treatment have an objective and reasonable justification?
It was common ground that points (ii) and (iii) were in the affirmative, the comparators being unmarried heterosexual couples. Point (i) was also satisfied. On the facts, the appellant’s interest in his home was under threat. Article 8 placed the state under an obligation to act positively in order to protect such an interest, to the extent that it could intervene in contractual relationships between private individuals. Petrovic v Austria (2001) 33 EHRR 14 demonstrated that once the state had chosen to intervene in a factual area characteristic of those protected by Article 8, Article 14 would be engaged if the mode of that intervention demonstrated relevant discrimination. The case therefore turned on the question of whether it was reasonable, in the circumstances, to discriminate between heterosexual and homosexual relationships, and it was for the discriminator to establish an objective and reasonable justification for such discrimination.
Authority adduced to demonstrate that such discrimination was necessary in order to protect the interests of the family, such as Harrogate Borough Council v Simpson (1984) 17 HLR 205, was outdated, and, in any event, was undermined by the finding in Fitzpatrick that a stable homosexual relationship did constitute a family relationship. In general terms, sexual orientation was no longer a permissible ground for discrimination. In the instant case, since no rational reason had been advanced for the exclusion of same-sex relationships from para 2, it was inescapable that para 2, as construed by the House of Lords in Fitzpatrick, infringed Article 14.
Paul Staddon (instructed by Oliver Fisher) appeared for the appellant; Jonathan Small (instructed by Hugh Cartwright & Amin) appeared for the respondent; Rabinder Singh QC (instructed by Bindman & Partners) appeared for the intervener.
Vivienne Lane, barrister
