Ghaidan v Godin-Mendoza

Discrimination because of sexual orientation falls within article 14 of the European Convention on Human Rights. Statutory protection connected with a person’s home falls within the ambit of article 8 even though article 8 has not independently been infringed.

Once differential treatment between analogous groups is established, the discriminator must show an objective and reasonable justification. Deference has only a minor role where discrimination and minority rights of high constitutional importance are involved.

Under section 3 of the Human Rights Act 1998, legislation must, so far as possible, be read compatibly with Convention rights. A survivor living with a tenant in a marriage-like same-sex relationship therefore lived with the tenant as if they were husband or wife and could succeed to a statutory tenancy.

The appellant had lived with the deceased statutory tenant in a close, loving, monogamous and long-term same-sex relationship. The county court held that he was a member of the tenant’s family and awarded him an assured tenancy under paragraph 3(1) of Schedule 1 to the Rent Act 1977. It considered itself precluded by Fitzpatrick v Sterling Housing Association [2001] 1 AC 27 from awarding a statutory tenancy under paragraph 2.

The appellant appealed from the West London County Court. The sole contested issue was whether paragraph 2 had to be reconsidered under articles 8 and 14 of the Convention and the Human Rights Act 1998. The respondent accepted that an equivalent surviving heterosexual partner would receive more favourable treatment and was an analogous comparator, but disputed whether article 8 was engaged and whether the difference was unjustified.

1. Appeal allowed unanimously. Buxton LJ delivered the leading judgment. Keene LJ agreed and gave additional reasons. Kennedy LJ agreed with both judgments. The court declared that paragraph 2(2) of Schedule 1 to the Rent Act 1977 must be read compatibly with the Convention and that the appellant succeeded to a statutory tenancy.

2. Article 14 does not require an independent breach of another Convention right. It applies when the subject matter falls within the ambit of a substantive right. Statutory succession protection is closely connected with the home and therefore falls within article 8. The state had chosen to regulate the landlord and tenant relationship, and reduced security of tenure exposed the survivor to a greater risk of eviction. Litigation between private parties did not prevent application of sections 3 and 6 of the Human Rights Act 1998.

3. The surviving same-sex partner and the survivor of an equivalent heterosexual partnership were analogous comparators and received different treatment. Sexual orientation was an impermissible ground of discrimination within article 14. The respondent therefore had to establish an objective and reasonable justification, comprising a legitimate aim and a proportionate relationship between the distinction and that aim.

4. No sufficient justification was established. Although courts may defer to Parliament on complex social and economic policy, discrimination and minority rights are of high constitutional importance and lie within the courts’ protective function. Excluding same-sex couples did not rationally promote landlords’ interests, housing-market flexibility or heterosexual family life. Parliament had already protected the more numerous class of unmarried heterosexual partners, and the difference between assured and statutory tenancies was an ineffective means of promoting the suggested policy.

5. The earlier Commission decision in S v United Kingdom did not establish justification. Its assumption that the legislation protected a family category excluding homosexual couples lacked support and could not survive the recognition in Fitzpatrick that a stable same-sex couple could constitute a family. Grant v South-West Trains Ltd concerned the narrower Community rules on equal pay and did not establish a general Convention rule permitting sexual-orientation discrimination.

6. Section 3 permitted paragraph 2(2) to be read as covering persons living together as if they were husband or wife. That construction retained the requirement of a marriage-like relationship and did not extend statutory succession to materially different domestic arrangements. The court declared that the appellant succeeded to the statutory tenancy on his partner’s death.

1. Court of Appeal: The appeal was allowed unanimously. Paragraph 2(2) of Schedule 1 to the Rent Act 1977 was read compatibly with the Convention, and the appellant was declared to have succeeded to a statutory tenancy.

2. West London County Court: The judge awarded the appellant an assured tenancy under paragraph 3(1), but considered Fitzpatrick v Sterling Housing Association [2001] 1 AC 27 to preclude succession to a statutory tenancy.