Fitzpatrick v Sterling Housing Association Ltd

For succession under paragraph 3 of Schedule 1 to the Rent Act 1977, an adult same-sex partner can be a member of the original tenant’s family. The statutory expression is flexible and may apply to relationships recognised as familial under contemporary social conditions.

A qualifying partnership requires stable or intended-to-be-permanent sharing of lives in one home. Relevant characteristics include love, commitment, care, support and mutual interdependence. Mere cohabitation, convenience, friendship or a transient intimate relationship is insufficient. By contrast, paragraph 2(2) treats only an opposite-sex cohabitant living as the tenant’s wife or husband as a spouse.

Mr Fitzpatrick lived with the protected tenant, Mr Thompson, from 1976 until Mr Thompson’s death in 1994. Their relationship was long-standing, close, loving, faithful and monogamous. After Mr Thompson became severely disabled, Mr Fitzpatrick gave up work and cared for him until his death.

The county court dismissed Mr Fitzpatrick’s claim to succeed to the tenancy. The Court of Appeal, by a majority, upheld that decision: Fitzpatrick v Sterling Housing Association Ltd [1998] Ch 304. Ward LJ dissented.

The House considered whether Mr Fitzpatrick qualified under Schedule 1 to the Rent Act 1977, as amended: first, as a person living with the tenant as his wife or husband under paragraph 2(2); alternatively, as a member of the tenant’s family under paragraph 3.

By a majority of three to two, the appeal was allowed. Lord Slynn of Hadley, Lord Nicholls of Birkenhead and Lord Clyde held that the appellant succeeded under paragraph 3 of Schedule 1 to the Rent Act 1977. Lord Hutton and Lord Hobhouse of Woodborough dissented on that issue.

1. Paragraph 2(2). All five Law Lords concluded that the appellant was not a spouse or a person living with the tenant as his wife or husband. In this context, “marriage”, “spouse”, “husband” and “wife” denote an opposite-sex relationship. Paragraph 2(2), inserted by the Housing Act 1988, extends protection to an unmarried man and woman who live as husband and wife. It does not extend the statutory meaning of spouse to same-sex partners.

2. Paragraph 3. Lord Slynn, Lord Nicholls and Lord Clyde held that “family” is an ordinary, flexible and undefined expression. Its meaning must be derived from the statutory context and purpose. The succession provision protects people who shared their lives with the original tenant as a single family in one home. The word is not confined to relationships created by blood, marriage or formal adoption.

3. The majority held that a same-sex couple is legally capable of satisfying that familial concept. The relevant partnership is stable or intended to be permanent and is characterised by shared lives, mutual love and affection, commitment, care, support and interdependence. Sexual orientation supplies no material distinction once a stable and permanent unmarried opposite-sex partnership can constitute a family. The essential meaning of “family” had not necessarily changed; rather, the relationships capable of falling within that flexible expression could reflect contemporary social conditions.

4. Mere residence, convenience, friendship, or a transient or superficial intimate relationship will not suffice. Whether the necessary familial bond exists is fact-sensitive. The two-year residence condition in paragraph 3 must also be satisfied. The agreed facts and the county court’s findings established the requisite bond in this case.

5. Lord Hutton and Lord Hobhouse would have dismissed the appeal. They considered that authority and the structure of Schedule 1 confined a de facto family relationship to one resembling a legally recognised relationship of blood, adoption or opposite-sex marriage. In their view, wider protection for same-sex partners required legislation.

1. House of Lords: By a majority of three to two, allowed the appeal and reversed the Court of Appeal’s order. The appellant qualified as a member of the original tenant’s family under paragraph 3 of Schedule 1 to the Rent Act 1977.
2. Court of Appeal: By a majority, dismissed the appeal from the county court: Fitzpatrick v Sterling Housing Association Ltd [1998] Ch 304. Waite LJ and Roch LJ formed the majority; Ward LJ dissented.
3. West London County Court: Judge Colin Smith QC dismissed the claim that the appellant had succeeded to the tenancy as a spouse or as a member of the tenant’s family.