Fitzpatrick v Sterling Housing Association

Under Schedule 1 to the Rent Act 1977, a same-sex partner cannot succeed as a spouse merely because the relationship is permanent, stable and devoted. The statutory phrase referring to a person living as the tenant’s wife or husband was confined to heterosexual relationships. The concept of family remained rooted in kinship, adoption or marriage, subject only to the recognised extension for heterosexual couples living as husband and wife.

The court accepted that statutory language may be interpreted in light of contemporary social attitudes. It held, however, that correcting discriminatory or arbitrary legislation by enlarging the statutory class of successors was a task for Parliament. Extrinsic sociological evidence was unnecessary where the judge could take judicial notice of social change.

Mr Fitzpatrick had lived for many years with Mr Thompson, the protected tenant of a flat, in a stable homosexual relationship and had provided substantial care after Mr Thompson became disabled. Following Mr Thompson’s death, Mr Fitzpatrick sought succession to the tenancy.

The county court dismissed the application, holding that the statutory definitions did not include him. The appeal concerned whether he qualified under paragraph 2(2) of Schedule 1 to the Rent Act 1977 as a person living with the tenant as his wife or husband, or under paragraph 3(1) as a member of the tenant’s family.

The appeal was dismissed by a majority. Waite LJ delivered the principal judgment and Roch LJ agreed with his reasoning. Ward LJ dissented and would have allowed the appeal.

1. Paragraph 2. The expression referring to a person living with the tenant as his or her wife or husband was materially identical to the wording considered in Harrogate Borough Council v Simpson [1984] 17 HLR 205. That authority bound the court and was virtually indistinguishable. The phrase applied to heterosexual relationships only. Mr Fitzpatrick therefore could not succeed as a deemed spouse.
2. Paragraph 3. The Rent Act concept of family was rooted in kinship, adoptive status or marriage. The relevant test required at least a broadly recognisable de facto familial nexus. A shared household, mutual devotion, care and interdependence did not themselves establish that nexus. The relationship consequently fell outside the statutory family category.
3. Construction and legislative function. The court accepted the contemporary interpretive approach associated with Dyson Holdings v Fox [1976] 1 QB 503, although Roch LJ expressed reservations about its rationale. The judges nevertheless held that the court could not give the statutory language a new meaning merely to cure its discriminatory and arbitrary effects. The competing interests of successors and landlords required legislative policy choices.
4. Evidence and outcome. The trial judge was entitled to rely on judicial knowledge of changing social attitudes without receiving extensive extrinsic sociological evidence. Ward LJ would have adopted a functional and contemporary approach, treating the relationship as equivalent in substance to marriage or family life. The formal order was: appeal dismissed with costs.

• Court of Appeal (Civil Division) [1997] EWCA Civ 2169: appeal dismissed with costs by Waite LJ and Roch LJ; Ward LJ dissented.
• West London County Court: on 19 April 1996, His Honour Judge Colin Smith QC dismissed the application for succession to the tenancy.