Fitzpatrick v. Sterling Housing Association Ltd

The House of Lords considered the meaning of "spouse" and "member of the original tenant's family" in Schedule 1 to the Rent Act 1977, as amended by the Housing Act 1988. The court held that paragraph 2(2) (a person "living with the original tenant as his or her wife or husband") is to be read in its ordinary sense as referring to a heterosexual relationship and therefore does not include same-sex partners. However, the undefined statutory word "family" in paragraph 3 is flexible, contextual and capable of including persons in a long‑term, stable, mutually interdependent same‑sex relationship. Applying that test on the facts, the appellant established the necessary "broadly recognisable de facto familial nexus" and succeeded under paragraph 3.

This appeal arose after the death of a protected tenant, Mr John Thompson. The appellant, Mr Martin Fitzpatrick, had lived with Mr Thompson from 1976 until Mr Thompson's death in 1994 in a long‑standing, monogamous same‑sex relationship and cared for him after a severe stroke. Mr Fitzpatrick applied for a declaration that he succeeded to the tenancy under Schedule 1 to the Rent Act 1977, claiming (i) that he was a "spouse" within paragraph 2(2) as someone "living with the original tenant as his or her wife or husband" and alternatively (ii) that he was a "member of the original tenant's family" within paragraph 3.

Procedural path: the County Court (Judge Colin Smith Q.C.) found the relationship as pleaded but rejected both statutory routes. The Court of Appeal by majority upheld that result (see Court of Appeal [1998] Ch. 304) with Ward L.J. dissenting. The matter came to the House of Lords on appeal.

Issues framed by the House: (1) Whether paragraph 2(2) should be read so as to include same‑sex partners; (2) whether the word "family" in paragraph 3 can, consistently with the statutory context and authority, include a same‑sex partner who shared a long‑term, interdependent domestic relationship with the tenant.

Reasoning and outcome: The House held unanimously that paragraph 2(2) was properly read to import the ordinary concept of husband and wife (a heterosexual relationship) and therefore did not cover same‑sex partners. On paragraph 3 the Law Lords examined historical authorities and statutory purpose, held that "family" is a flexible ordinary word applied in context to secure the home of those sharing life with the tenant, and concluded that the class of persons capable of falling within the word includes same‑sex partners where the relationship demonstrates permanence, mutual interdependence, commitment and sharing of life. Applying those criteria to the judge's findings, the appellant qualified under paragraph 3 and the appeal was allowed.

Appeal allowed. Paragraph 2(2) (treated as extending spouse to persons living "as his or her wife or husband") must be read in its ordinary gendered sense and does not include same‑sex partners; but the undefined word "family" in paragraph 3 is sufficiently flexible to include a same‑sex partner who establishes a broadly recognisable de facto familial nexus (stable, loving, caring, mutually interdependent cohabitation). On the facts the appellant satisfied paragraph 3 and succeeded.

County Court (Judge Colin Smith Q.C.) — application dismissed; Court of Appeal — appeal dismissed by majority [1998] Ch. 304 (Ward L.J. dissenting); House of Lords — appeal allowed [1999] UKHL 42.