England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE No CCRTF 96/0638/E

Royal Courts of Justice

Strand

London WC2

Wednesday, 23rd July 1997

B e f o r e:

LORD JUSTICE WAITE

LORD JUSTICE ROCH

LORD JUSTICE WARD

MARTIN FITZPATRICK

Appellant

- v -

STERLING HOUSING ASSOCIATION

Respondent

(Handed down transcript prepared by

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

- - - - - -

MR JAN LUBA (Instructed by John Ford of Islington, London) appeared on behalf of the Appellant

MR VIVIAN CHAPMAN and MR C CANT (Instructed by Belvederes of London) appeared on behalf of the Respondent

J U D G M E N T

(As Approved by the Court)

(Crown Copyright)

LORD JUSTICE WAITE:

The short but difficult question raised by this appeal is whether the surviving partner in a stable and permanent homosexual relationship can claim succession rights under the Rent Acts in respect of premises of which the deceased partner was a protected tenant. The facts are not in dispute. Mr John Thompson became the statutory tenant of a flat No 75 Ravenscourt Road London W6 ("the flat") in 1972. The appellant Mr Fitzpatrick moved in to live with him there in 1976, and the two of them maintained from then onwards a close, loving and faithful homosexual relationship. Early in 1986 Mr Thompson suffered, as a result of a fall, head injuries which required surgery and then a stroke which left him a tetraplegic. From the summer of that year Mr Fitzpatrick nursed him at home, and dedicated himself to providing, with love and devotion, the constant care which he required. In 1994 Mr Thompson died.

The landlords are a charity providing families and individuals with accommodation at affordable rents. It is common ground that they do not qualify as a Housing Action Trust within the terms of the Housing Act 1985 (as now amended), and that they accordingly fall to be treated as private landlords subject to the Rent Acts. Mr Fitzpatrick applied to take over the tenancy of the flat (which comprises four rooms plus kitchen and bathroom) but the landlords, though willing to re-house him in smaller accommodation in another of their properties, were not prepared to agree.

Mr Fitzpatrick applied to the West London County Court for a determination that he was entitled to succeed to the tenancy of the flat. His application was given a careful and sympathetic hearing in the Central London Trials Centre by His Honour Judge Colin Smith QC, who on 19 April 1996 dismissed it with obvious reluctance, holding that he was constrained by law to treat him as being outside the statutory definitions of a person entitled to succeed on the death of a statutory tenant. From that decision Mr Fitzpatrick now appeals to this court.

The issues confronting the judge cannot be appreciated without a recital - unavoidably at some length I am afraid - of the statute and case law which has developed around this topic. It will be necessary to include in that survey the secure tenancy regime for council house tenants as well as the Rent Act regime in the private sector because the two regimes have similarities in regard to succession rights which are relevant to the arguments raised on this appeal.

THE LAW

A degree of transmission on death was a feature of the Rent Acts since their inception in 1920. At first it was achieved by extending the definition of "the tenant" to include a widow or qualifying member of his family. That was replaced by a legislative scheme (maintained to this day) of setting out the rights of succession in a schedule specifying in the first paragraph the primary successor and in the second a default category of qualifying successor. Originally the primary successor was the deceased tenant's widow. From 1968 the secondary or default category was defined as a person who was a member of the original tenant's family residing with him for six months immediately before his death. A provision was added in the 1977 Act that if there was more than one such person the right of succession should be determined in default of agreement by the court. The Housing Act 1980 substituted "surviving spouse" for "widow" in the primary class, which was thus extended to widowers.

When security of tenure was afforded to council tenants by the Housing Act 1980, a scheme was set up which bore similarities to the Rent Act regime. But there were differences. S 30 (now S 87 of the Housing Act 1985) provided a similarly expressed primary right of succession for the deceased tenant's spouse and secondary right for "another member of the tenant's family" living with him for twelve months before his death. In this instance, however, the term "family" was specifically defined. S 50 (now S 113 of the 1985 Act) provided that:

"A person is a member of another's family .....if

(a) he is the spouse of that person, or he and that person live together as husband and wife, or

(b) he is that person's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece".

A further sub-section applied the categories in (b) to cases where the relevant relationship was by marriage, step relationship, or half blood.

It is to be noted that although advantage was taken by Parliament when enacting the Housing Act 1980 of the opportunity to amend the Rent Acts by substituting spouse for widow in the primary class of successor, and thus harmonise the two succession systems in that respect, it was not apparently thought necessary or desirable to introduce into the Rent Act regime two significant features of the secure tenancy regime, namely the specific definition of "family" and the specific enlargement of the definition of "spouse" to include persons "living together as husband and wife". Those were left to be dealt with in the Rent Act regime, as they had been previously, by judicial interpretation.

It will be convenient at this point to pause in the narrative of statutory development and turn to the authorities embodying that interpretation. Their full significance cannot be appreciated without some reference to the social changes that were occurring during the period with which they were concerned - that is to say the mid-60s to the mid-80s - regarding the incidence of, and social attitudes towards, cohabitation outside marriage in heterosexual, and also in gay and lesbian, relationships.

Unmarried cohabitation between heterosexuals developed strikingly in scale to the point that today (according to figures helpfully supplied by the Family Policies Study Centre) 25% of all women aged between 18 and 49 are unmarried cohabitants, and in the age group most likely to cohabit (women in their late 20s and men in their late 30s) over one third of the population now cohabits. As it became more common, cohabitation lost the secretiveness with which it had sometimes been concealed by those who felt the need to give the appearances of marriage (through change of surname by deed poll for example) to their relationship. As it became more open, so attitudes toward it became less judgmental. That included the attitude of the courts, where notwithstanding that the encouragement of marriage as an institution remains a well established head of public policy, the respect due to the sincerity of commitment involved in many such relationships is reflected in judicial terminology - terms like "partner" now being more generally used than the once preferred references to "common law spouse", "mistress" or even (as will shortly be illustrated) "living in sin." A similar respect is reflected in The Law Commission's current consideration of steps to devise for unmarried partners procedures to ease the potential for financial dispute when such relationships break down.

In the same way, though on a lesser scale, the increasing recognition by society of the respect due to those who share orientation towards their own sex has led to a greater openness in, and the removal of public censoriousness towards, gay and lesbian cohabitation. One indicator of this has been the willingness of the court, in appropriate circumstances, to regard a partner in a gay or lesbian relationship as a suitable person to adopt a child - see (in Scotland) the Opinion of the Lord President in The Petition of AMT (26 July 1996) and the judgment of Singer J in Re W (minor) The Times 21 May 1997. The degree of interdependence, marital in character, involved in gay or lesbian relationships has also been acknowledged in the field of equity - see Barclays Bank v O'Brien 1994 AC 180 per Lord Browne-Wilkinson at page 198 D.

Turning (against that changing social background) to the case law, I begin with Brock v Wollams [1949] 2 KB 388. It concerned a statutory tenant survived by a child who had been informally, though not legally, adopted. The child was held by this court to have been included within the definition of the tenant's family for Rent Act purposes. Cohen LJ (at p 395) expressed it in these terms:

"The question the county court judge should have asked himself was this: Would an ordinary man, addressing his mind to the question whether [the daughter] was a member of the family or not, have answered "yes" or "no"? To that question I think there is only one possible answer, and that is "yes"."

Gammans v Ekins [1950] 2 KB 328 concerned a heterosexual relationship between an unmarried couple who had adopted all the appearances of marriage and were thought of in their neighbourhood as being man and wife. The Court of Appeal rejected the claim of the survivor to be treated as a member of the deceased tenant's "family". Asquith LJ held that the tie of marriage was essential to family membership. commenting that if (as to which there had been no finding below) the relationship was a sexual one it would be anomalous to allow the status of irremovability under the Rent Acts to be acquired "by living or having lived in sin", he added:

"To say of two people masquerading as these two were, as husband and wife (there being no children to complicate the picture) that they were members of the same family, seems to be an abuse of the English language..."

In Ross v Collins [1964] 1 WLR 425 a sub-tenant of one room forming part of a protected tenancy who became the devoted carer of the deceased tenant in old age and illness failed to secure recognition by the court of "family membership." Russell LJ said:

"Granted that "family" is not limited to cases of a strict legal familial nexus, I cannot agree that it extends to a case such as this. It still requires, it seems to me, at least a broadly recognisable de facto familial nexus. This may be capable of being found and recognised as such by the ordinary man - where the link would be strictly familial had there been a marriage, or where the link is through adoption of a minor, de jure or de facto, or where the link is "step-" or where the link is "in-law" or by marriage. But two strangers cannot, it seems to me, ever establish artificially for the purposes of this section a familial nexus by acting as brothers or as sisters, even if they call each other such and consider their relationship to be tantamount to that. nor, in my view, can an adult man and woman who establish a platonic relationship establish a familial nexus by acting as a devoted brother and sister or father and daughter would act, even if they address each other as such and even if they refer to each other as such and regard their relationship as tantamount to such. Nor, in my view, would they indeed be recognised as familial links by the ordinary man."

A heterosexual unmarried relationship of long standing required consideration by this court in Dyson Holdings v Fox [1976] 1 QB 503. A spinster lived with the statutory tenant as his wife for 21 years before his death. She took his name, and in every respect they were man and wife save that they had not gone through the marriage ceremony. The court was sympathetic to her claim to be regarded as part of the deceased tenant's family, but the decision in Gammans v Ekins (supra) stood in the way. Lord Denning MR was in favour of dealing with it head-on and holding that it could not - or in the light of later authority could no longer - be supported. The preference of the majority of the court was to distinguish it by treating it as correct according to the social conditions of its time, but holding that in current social conditions "family" had acquired a wider connotation. James LJ said:

"Between 1950 and 1975 there have been many changes in the law effected by statute and decisions of the courts. Many changes have their foundation in the changed needs and views of society. Such changes have occurred in the field of family law and equitable interests in property. The popular meaning given to the word "family" is not fixed once and for all time. I have no doubt that with the passage of years it has changed."

There are observations to like effect in the judgment of Bridge LJ. It is important, however, to note of that case that on the actual ratio of the decision upon its facts (as opposed to the grounds for distinguishing earlier authority) there was unanimity between the judges. That ratio was expressed by Lord Denning MR in this sentence (p 509):

".... we should hold that a couple who live together as man and wife for 20 years are members of the same family, whether they have children or not."

Although the rationale of Dyson was doubted by another division of this court in Helby v Rafferty [1979] 1 WLR 13, it was held to be binding. On the particular facts of that case (an unmarried couple who made no attempt at pretence of marriage, because the woman wanted to retain her independence, and who even attempted at times to conceal the depth of their attachment) it was held that the trial judge had been justified in declining to regard the couple as a "family".

When the unusual case of a widow of 75 sharing her protected flat with a young man of 25 with whom she maintained a close but platonic friendship came before the House of Lords in Carega Properties v Sharratt [1979] 1 WLR 928, the facts were regarded as too exceptional to justify treating the case as an opportunity for a consideration by the House of the rightness of the decision in Dyson (supra). The judge had answered "the Cohen question" (as it had by then come to be called) with a "yes", but the court of appeal answered it with a "no," and the House of Lords agreed. The points of principle that emerge from the case are Viscount Dilhorne's statement (p 932) that the meaning to be given to the phrase "a member of the original tenant's family" is a question of law, that "family" is a word whose content so varies with its context that it is for the judge to construe the statute and for him to state his conclusion as to the meaning (in its ordinary natural sense) of the word in the particular context, and that "family" must be read as meaning something more than "household".

In Watson v Lucas [1980] 1 WLR 1494 this court was concerned with a heterosexual relationship between the tenant and a married man who never divorced his wife, both parties continuing to use their true names and making no attempt to pretend married status. Dyson, though once more criticised, was again held to be binding, and the majority (Oliver LJ dissenting) held that the trial judge had been wrong to regard the man's continuing married status and the use by both parties of their original surnames as negativing the "family" status of their relationship. Stephenson LJ described the ratio of Dyson in these terms (p 1498):

"I understand the ratio of the majority decision as holding that a union between a man and a woman, which in all the circumstances, known and unknown to the ordinary man, looks permanent and stable to him, creates a family unit and both parties are members of it, whether or not it consists of more than those two."

He later added (p 1501):

"The ordinary man has to consider whether a man or a woman is a member of a family in the light of the facts, and whatever may have been held before [Dyson] I do not think a judge, putting himself in the place of the ordinary man, can consider an association which has every outward appearance of marriage, except the false pretence of being married, as not constituting a family.....The time has gone by when the courts can hold such a union not to be "familial" simply because the parties to it do not pretend to be married in due form of law."

Sir David Cairns held that the case could not sensibly be differentiated from Dyson, and continued (p 1507):

"It is the relations between the man and the woman that are relevant rather than the appearance that they present to the public."

Sefton Holdings v Cairns [1987] 20 HLR 124 concerned a woman statutory tenant whose parents had taken in a 23 year old orphan girl (the claimant) during the last war and ever thereafter treated her as a daughter. When the parents died the tenant and the claimant remained in the house, where they regarded each other as sisters. After the death of the tenant many years later, the claimant obtained a holding from the judge that she was a member of the tenant's family. That was reversed on appeal. The case was held to be analogous to Ross v Collins (supra) from which the passage already quoted in the judgment of Russell LJ was cited with approval by Lloyd LJ, who said that it covered the facts of that case. He later added this (p 127):

".....there is a distinction between being a member of the family and living as a member of the family. There is no doubt that the defendant lived as a member of the family, and that may be why the judge decided this case in her favour. But the question we have to ask ourselves is not whether she lived as a member of the family, but whether she was a member of the family. I am clear that she was not, and that the man in the street would take the same view."

That completes the authorities decided down to 1987 in the Rent Act jurisdiction. It will have been noted that they all concern claims to familial status for relationships that were either platonic or heterosexual. There is no decision, in that area of the law, as to the right of a partner in a gay or lesbian relationship to be accorded the status of member of the other partner's "family" for succession purposes under the Rent Acts.

Such a question did, however arise during that period in regard to the right of such a partner to succeed to a secure tenancy of a local authority letting. The case was Harrogate Borough Council v Simpson [1984] 17 HLR 205. The claimant (defending proceedings for possession by the local authority) had lived with the deceased secure tenant in a lesbian relationship for some years and was so living at the date of her death. It will be remembered that in the secure tenancy regime membership of the "family" is specifically defined. It was accepted that the claimant could not bring herself within any other head of that definition and that she could succeed (if at all) only under the head which reads (Housing Act 1980 S 50 (3)):

"A person is a member of another's family...if they live together as husband and wife".

Watkins LJ recited the argument of the claimant's counsel as follows:

"Mr. Allan suggests that the manifestations of the living together of husband and wife following a marriage ceremony are easily recognisable and are for the most part similar to a state where two women live together in a lesbian relationship. He says that in both there may be mutual love, monogamy, some degree of public acknowledgement of their condition of living, faithfulness by one to the other, a permanence of relationship, sexual relations of some kind, a shared surname, a joint household and, in the case of man and woman, of course, children. Save for the bearing of children, he maintains that all or nearly all of those manifestations can appear from the living together of two women. So, if the appearance of things is the test, there is no earthly reason why the Act is not complied with when two women live together in the state in which the late Mrs. Rodrigo and the defendant were living. They should be held to be living as husband and wife.

We are told that, not only did they so regard and describe themselves, but they behaved in some ways (outwardly at any rate) as though one was the husband and the other was the wife. Mrs. Rodrigo was the masculine partner apparently and wore men's clothing, and the defendant was the female counterpart.

Mr. Allan places reliance upon the word "as" which is contained in the final words of section 50(3). By the appearance of that word in its context it is to be understood that Parliament was indicating, not only that the provisions were intended to apply to persons who were married in the formal sense, but also to unions which gave the appearance of two people living together in a kind of matrimonial state. Much has happened, he further maintains, over the last decade or more to change people's opinions about what before that time were considered to be repugnant sexual relationships. Nowadays nobody blanches at the fact that two women who are lesbians live together, or two men who are homosexuals. It is not a crime for men in most circumstances to behave in that way, and, so far as lesbians are concerned, a crime in no circumstance.

He then referred to Dyson, from which he quoted, and stated his conclusion in these terms:

"Mrs Davies, who appears for the plaintiffs, contends that, if Parliament had wished homosexual relationships to be brought into the realm of the lawfully recognised state of a living together of man and wife for the purpose of the relevant legislation, it would plainly have so stated in that legislation and it has not done so. I am bound to say that I entirely agree with that. I am also firmly of the view that it would be surprising in the extreme to learn that public opinion is such today that it would recognise a homosexual union as being akin to a state of living as husband and wife. The ordinary man and woman, neither in 1975 [a reference to the date of Dyson] nor in 1984, would in my opinion think even remotely of there being a true resemblance between those two very different states of affairs."

Ewbank J (the other member of the court) said:

"I agree that the expression 'living together as husband and wife'.....is not apt to include a homosexual relationship. The essential characteristic of living together as husband and wife, in my judgment, is that there should be a man and a woman...."

I must now return to the narrative of statutory development. The Housing Act 1988 introduced into the first schedule to the Rent Act 1977 a provision that:

"a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant".

To that there was joined a provision (catering apparently for triangular relationships) that if there should be more than one person claiming "spouse status" by virtue of that insertion, such one of them as should be selected by agreement or by the court in default of agreement should constitute the surviving "spouse" for that purpose.

Another alteration was a change in the nature of the tenancy taken by a member of the deceased tenant's family (as opposed to a spouse in the true or extended sense). This was to be an assured tenancy in place of a statutory tenancy.

No other relevant change was made to the Schedule. Specifically (and, it is claimed, significantly) no attempt was made to alter the generality of the reference to the deceased tenant's "family" by importing into it a specific definition on the lines already provided in the Housing Acts for the secure tenancy succession regime.

As a result of these developments the First Schedule to the Rent Act 1977 now reads (so far as relevant):

1. Paragraph 2...below shall have effect, subject to section 2 (3) of this Act, for the purpose of determining who is the statutory tenant of a dwelling house by succession after the death of the person (in this Part of this Schedule referred to as "the original tenant") who, immediately before his death, was a protected tenant of the dwelling-house or the statutory tenant of it by virtue of his previous protected tenancy.

2 (1) The surviving spouse (if any) of the original tenant, if residing in the dwelling-house immediately before the death of the original tenant, shall after the death be the statutory tenant if and so long as he or she occupies the dwelling-house as his or her residence.

(2) For the purposes of this paragraph, a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant.

(3) If, immediately after the death of the original tenant, there is, by virtue of sub-paragraph (2) above, more than one person who fulfils the conditions in sub-paragraph (1) above, such one of them as may be decided by agreement or, in default of agreement, by the county court shall be treated as the surviving spouse for the purposes of this paragraph.

3. (1) Where paragraph 2 above does not apply, but a person who was a member of the original tenant's family was residing with him in the dwelling-house at the time of and for the period of 2 years immediately before his death, then, after his death, that person or if there is more than one such person such one of them as may be decided by agreement, or in default of agreement by the county court, shall be entitled to an assured tenancy of the dwelling-house by succession.

SUMMARY OF THE STATUTE AND CASE LAW

A. The Secure Tenancy Regime

Succession to a secure tenancy can only be obtained by a person who in relation to the deceased tenant was:

(a) a spouse

(b) someone living with him or her as husband and wife

(c) a member of his or her family who resided with the tenant for 12 months before the date of death - the term "family" being specifically defined to include only certain relatives by blood or marriage or step-connection.

A lesbian or gay partner cannot qualify under (a) or (c) because of the absence of the marriage tie in the one case and the required kinship in the other. A heterosexual partner can qualify under (b) but a gay or lesbian partner cannot do so because of the ruling in Harrogate. To that extent the secure tenancy regime discriminates against gay and lesbian partners in favour of heterosexual partners of deceased tenants by conferring succession rights on the latter but not the former.

B. The Rent Acts Regime

Succession to a statutory or protected tenancy can only be obtained by a person who was in relation to the deceased tenant:

(a) a spouse

(b) someone living with him or her as wife or husband

(c) a member of his or her family residing with him or her in the dwelling-house at the time of and for a period of two years before the death. "Member of the family" is in this instance undefined. Case law has held it to be a term of wide import capable of being interpreted flexibly by the courts according to the social perceptions of the time (Dyson) as reflected through the eyes of the ordinary man or woman (Brock v Wollams, Carega v Sharratt and Sefton Holdings v Cairns) but the instances in which, following that interpretation, it has been applied outside the strict family ties of marriage or kinship are limited to a child informally adopted (Brock v Wollams) and persons of opposite sex living together as man and wife (Dyson and Watson v Lucas). There has (until this present case) been no decision on the question whether a surviving lesbian or gay partner of a deceased statutory tenant qualifies for the status of "member of the family".

OVERSEAS AUTHORITY

The New York City Rent and Eviction Regulations contain a provision that upon the death of a rent-control tenant the landlord may not dispossess:

"either the surviving spouse of the deceased or some other member of the deceased' tenant's family who has been living with the tenant".

In Braschi v Stahl Associates Co [1989] NYS 2nd 784 (Ct App 1989) the New York Supreme Court held that a surviving male partner in a gay relationship with the deceased tenant was eligible to claim protection under the Regulations. The Appellate Division reversed the decision, holding that protection applied only to "family members within traditional, legally recognised familial relationships". The Court of Appeals of New York allowed an appeal from that holding, declaring, by a majority of 4 to 2, that "the Legislature intended to extend protection to those who reside in households having all the normal familial characteristics. The [appellant] should therefore be allowed the opportunity to prove that he and [the deceased tenant] had such a household." In remitting the case for a determination on that issue, the court (per Justice Titone) said (p 790):

".....it is the totality of the relationship as evidenced by the dedication, caring and self-sacrifice of the parties which should in the final analysis control. Appellant's situation provides an example of how the rule should be applied."

THE APPROACH OF THE JUDGE IN THIS CASE

It was common ground that the Judge was required, when construing the phrase "a member of the original tenant's family", to apply the general interpretive principle of Dyson - i.e. to construe the term "family" in its popular modern meaning, taking into account changed social attitudes and the changed needs and views of society. He held that in adopting that approach he was bound to look for a familial link, following the approach of Russell LJ in Ross v Collins which he held to be of general application and not limited to the context of a non-sexual relationship. Applying the actual ratio of Dyson (as confirmed in Watson v Lucas) he held that the relevant familial link for this purpose was that between husband and wife - which means (when applied to the context of an unmarried relationship) that the relationship must give to the ordinary man the appearance of a couple living as man and wife. After saying that in this respect the Braschi decision appeared to show a difference of approach between the law of New York and that of England, he stated his conclusion in these terms:

"I fully accept that a cohabiting relationship between members of the same sex of a permanent and stable kind would properly be regarded nowadays, whether in 1996 or 1994, by the man in the street as just as lasting and socially valuable a relationship as that between husband and wife. But, in my judgment, for the reasons I have attempted to give, this does not entitle me, even in construing the word "family" in a popular sense as required by Dyson, to find that such a relationship falls within such definition. In my judgment, such a decision falls to be made by Parliament and not by the courts. It will be for others to decide whether Parliament should look at this question, but perhaps, in the light of the Court of Appeal's observations in ex parte Lustig-Prean, it might be appropriate for it to do so."

THE ARGUMENT IN THIS APPEAL

This case has been ably argued, and counsel have done full justice to the powerful considerations on either side.

A. Evidence of social attitudes

At the hearing before the judge, Mr Luba, counsel for Mr Fitzpatrick, sought leave to introduce in evidence a substantial body of material in the form of reports and informed comment on recent developments in the attitude of society towards lesbian and gay relationships. The judge ruled it inadmissible, holding that the question was one of law involving statutory interpretation on which it would be impermissible to receive extraneous evidence of social perception. He was very far, however, from saying that judicial notice could not be taken of changing social attitudes. On the contrary he referred to, and quoted from, the judgments of Sir Thomas Bingham MR and Henry LJ in the recent case on employment of homosexuals in the armed services (R v Ministry of Defence ex parte Lustig-Prean [1995] ALR 29) as an example of judicial expression of the major changes in public attitudes towards homosexuality that have taken place in our generation. Mr Luba submits that the judge was wrong to exclude such evidence. Included within it was the evidence of an expert, Dr Dawn Sharp, charting in two reports the changes in public perceptions of homosexuality and concluding that:

"...public opinion is increasingly favourable towards homosexuality and equal rights for homosexual people"

Reference to such material might, for instance, have been of the greatest value, so Mr Luba submits, in enabling the judge to determine whether or not changes in public perception had

taken place within what at first sight appears to be the very short period between the decision in Harrogate (1985) and today, and if so whether such changes would justify attributing today to such phrases as "living as man and wife" and "member of the family" a wider connotation than would have been appropriate twelve years ago. He cites, in support of that, Lord Hope in Re AMT (supra):

"Where public policy stands on homosexuality is a matter for the Court to determine from the material before it and then to apply, so far as relevant, to the facts of the case. So the judge may examine such material as the intendment of the Act and decisions and dicta in other cases in order to discover objectively what, if anything, public policy has to say on the issue. In that exercise he is performing a judicial function on behalf of the Court, What he must not do is permit his own personal views, or his own private beliefs, to affect his judgment."

Those words, with which I would respectfully agree, appear to indorse, rather than to deprecate, the decision of the judge in the instant case to rely exclusively on the material already before him, and his own judicial knowledge of changing social attitudes towards homosexuality, without taking account of extraneous evidence as to the views of individual bodies or persons. The judge clearly did not need to be informed as to the marked changes that have taken place in social acceptance of homosexuality, as the passage which I have already cited from his judgment makes plain. I would therefore reject this ground of appeal.

B. "Living with the original tenant as his or her wife or husband".

Mr Luba reserves the right, should this case go further, to contend that the Harrogate case was wrongly decided. He accepts however that it represents a decision in a closely similar context on virtually identical wording. Subject to one or two minor points of possible distinction which he advanced with more diffidence than enthusiasm, he acknowledged that the decision is not only binding on this court but so closely analogous as to be virtually indistinguishable. In the light of that acknowledgment, which in my view was properly given, it is unnecessary to say more about this possible head of claim. The court is in my view bound, in the present state of the law, to treat that phrase, when used in the Rent Act as well as in the Housing Act, as applying to a heterosexual relationship only.

C. "Member of the original tenant's family" .

The applicability of this phrase has provided the central issue in the appeal. Can a sexual partner of the same sex be described as a member of his or her family?

Mr Chapman for the landlord charity accepts, as he did before the judge, the interpretative principle of Dyson, namely that the court is bound to give to the term "member of the family" whatever connotation it demands in current popular thought and speech. He submits however that the judge was right to regard himself as constrained by authority to hold that when a sexual relationship between strangers in blood is relied on as constituting a family relationship, the attachment must bear the hall-mark of the familial nexus represented either by marriage or by unmarried cohabitation of the kind that occurs between husband and wife. For that he relies on the ratio of the decisions in Dyson and Watson v Lucas and the attributes of a familial relationship approved in Ross v Collins. The requirement that the partners should be living as husband and wife necessarily imports a male and female relationship and precludes its application to relationships between persons of the same sex. Mr Chapman also submitted that the judge's decision has the advantage of harmonising the two regimes of statutory and secure tenancies. He reminded us, finally, that Rent Act legislation, though it fulfils a public interest in the social control of land for the benefit of those least able to afford accommodation, is nevertheless by its nature expropriatary in its interference with rights of ownership of land, and should therefore, he submitted, be construed restrictively by adopting an interpretation of "family membership" which limits, rather than enlarges, the range of potential successor to a statutory tenant.

Mr Luba urges that, on the contrary, Parliament must be deemed to have known what it was about when the decision was taken, at the time of the 1988 amendments to the First schedule, to leave the expression "member of ...the family" to be interpreted broadly, in the sense approved in Dyson - a decision which formed an important part of the case law in operation when those changes were made. Such an interpretation, in the light of modern social attitudes and conditions, can lead, he submits, to only one result. If unmarried heterosexual partners in a permanent relationship are capable of being held (as they were in Dyson and Watson v Lucas) to be members of the former tenant's family, what reason can there be in logic or humanity for declining to accord the same status to a partner in a lesbian or gay relationship?

CONCLUSION

If endurance, stability, interdependence and devotion were the sole hall-marks of family membership, there could be no doubt about this case at all. Mr Fitzpatrick and Mr Thompson lived together for a longer period than many marriages endure these days. They were devoted and faithful, giving each other mutual help and support in a life which shared many of the highest qualities to be found in heterosexual attachments, married or unmarried. To adopt an interpretation of the statute that allowed all sexual partners, whether of the same or opposite sex, to enjoy the privilege of succession to tenancies protected by the Rent Acts would, moreover, be consistent not only with social justice but also with the respect accorded by modern society to those of the same sex who undertake a permanent commitment to a shared life.

The survey which I have undertaken in this judgment shows, however, that the law in England regarding succession to statutory tenancies is firmly rooted in the concept of the family as an entity bound together by ties of kinship (including adoptive status) or marriage. The only relaxation, first by court decision and then by statute, has been a willingness to treat heterosexual cohabitants as if they were husband and wife. That was a restrictive extension, offensive to social justice and tolerance because it excludes lesbians and gays. It is out of tune with modern acceptance of the need to avoid any discrimination on the ground of sexual orientation. In that respect I wholly agree with the comments of Lord Justice Ward. The question is: how is it to be put right?

Discrimination is not, unfortunately, the only arbitrary feature in this area of the law. Endemic within its system is a high risk of harsh or anomalous results - excluding from rights of succession many deserving instances of common households in which the survivor would have a strong moral case to succeed to the tenancy. Friends of long standing (widowers or spinsters for example) who share accommodation in old age without any sexual element in their relationship, but who often give and receive much the same kind of devoted care as we have admired in this case, are (and always have been) excluded. If succession rights are to be extended to couples of the same sex in a sexually based relationship, would it be right to continue to exclude friends? If friends are to be included, how is the stability and permanence of their household to be defined?

These questions have to be judged in the light of a further policy consideration - fairness to home owners. Every enlargement of the class of potential successors to rent controlled tenancies involves a deeper invasion of rights of house-owners to possession of their own property. That there is a need to reconcile these competing social priorities is something on which it would be easy to find a broad consensus. The difficulty arises when it comes to finding ways and means. At that point opinions are bound to vary, and a political judgment may in the end become necessary. That is what makes the process of reconciliation a task better suited to the legislative function of Parliament than to the interpretative role of the courts.

The law of succession to Rent Act protected tenancies is, in short, arbitrary and discriminatory. No one today would attempt to defend the favour it accords, outside the marriage tie, to heterosexual relationships over same-sex households. Few would support the potential for unfairness involved in a law which gives automatic succession rights to wives (however faithless) and children (however feckless) and at the same time denies any hope of succession to friends, however devoted their loyalty to the joint household. The judge was nevertheless right, in my view, to resist the temptation to change a bad law by giving it a new linguistic twist. He correctly acknowledged that such changes could only be made by Parliament.

They are changes which will certainly need to be made, if Parliament is to fulfil its function of reflecting the spirit of our times - in particular the spirit which recognises the value of all abiding relationships, the heterosexual, the lesbian, the gay - or even those which are not sexually based at all. As the law now stands, however, I feel bound, notwithstanding the respect and sympathy to which Mr Fitzpatrick is entitled, to dismiss the appeal.

LORD JUSTICE ROCH:

I agree with the conclusions and reasoning of My Lord, Lord Justice Waite.

I shall make a few observations, having read the interesting and elegant judgment of my Lord, Lord Justice Ward to explain why I remain at Point Y and do not feel able to progress to Point Z.

The case involves the construction of Schedule 1 of the Rent Act 1977 as amended by Section 76 of the Housing Act 1980 and Schedule 4 of the Housing Act 1988. The provisions of Schedule 1 are rules by which statutory tenants by succession are to be ascertained. Statutory tenants by succession are those who by virtue of s 2(1)(b) of the Act become statutory tenants of dwelling houses on the death of a person who immediately before his death was either a protected tenant of the dwelling house or the statutory tenant of it.

The rules are contained in paragraphs 2 and 3(1) of Schedule 1. Those paragraphs have been amended twice and now read:

"2. The surviving spouse (if any) of the original tenant, if residing in the dwelling house immediately before the death of the original tenant, shall after the death be the statutory tenant if and so long as he or she occupies the dwelling house as his or her residence.

(2) For the purpose of this paragraph a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant.

(3) If, immediately after the death of the original tenant, there is, by virtue of sub-paragraph (2) above, more than one person who fulfils the conditions in sub-paragraph (1) above, such one of them as may be decided by agreement or, in default of agreement, by the county court shall be treated as the surviving spouse for the purposes of this paragraph.

3. (1) Where paragraph 2 above does not apply, but a person who was a member of the original tenant’s family was residing with him in the dwelling house at the time of and for the period of two years immediately before his death then, after his death, that person or if there is more than one such person such one of them as may be decided by agreement, or in default of agreement by the county court, shall be entitled to an assured tenancy of the dwelling house by succession."

Paragraph 3(2) is a deeming provision. A person residing in the house with the original tenant for a period which began six months before the operative date and ended at the time of the original tenant’s death is to be taken as having been residing with the original tenant for the period of two years immediately before his death, if the original tenant died within a period of 18 months beginning on the date on which Part 1 of the Housing Act 1988 came into force.

It is to be noted that the surviving spouse of the original tenant if within the terms of paragraph 2 becomes the statutory tenant if and so long as he or she occupies the dwelling house as his or her residence, whereas the person who was a member of the original tenant’s family who comes within paragraph 3(1) of the Schedule becomes entitled to an assured tenancy of the dwelling house by succession.

There are rules for determining who, if anyone, is entitled to an assured tenancy of the dwelling house by succession after the death of the first successor in paragraphs 5 and 6(1) of the Schedule. Those paragraphs provide:

"5. If, immediately before his death, the first successor was still a statutory tenant, paragraph 6 below shall have effect, for the purposes of determining who is the entitled to an assured tenancy of the dwelling house by succession after the death of the first successor.

6. (1) where a person who:-

(a) was a member of the original tenant’s family immediately before the tenant’s death, and

(b)was a member of the first successor’s family immediately before the first successor’s death,

was residing in the dwelling house with the first successor at the time of, and for the period of 2 years immediately before, the first successor’s death, that person, or, if there is more than one such person, such one of them as may be decided by agreement or, in default of agreement, by the county court shall be entitled to an assured tenancy of the dwelling house by succession."

The interpretation of these provisions has been made more difficult by two decisions of this court. First that in Brock and others -v- Wollams [1949] 2 KB 388 CA, where at page 395 the test laid down in the judgment of Cohen LJ was:

"The question the county court judge should have asked himself was this: would an ordinary man addressing his mind to the question whether Mrs Wollams was a member of the family or not have answered “Yes” or “No”?"

That difficulty can be resolved by adopting the view of Lord Diplock of this test, expressed in Carega Properties S.A. -v- Sharratt [1979] 1 WLR 928 at 931B:

"This test, which does no more than say “family” where it is used in the Rent Acts is not a term of art but is used in its ordinary popular meaning, has being repeatedly referred to and applied in subsequent cases."

Viscount Dilhorne at page 932 D said of the test that whilst it had:

"not infrequently been posed, the answer to the question is not likely to extract any more than the judge’s personal view. It is to the highest degree unlikely that a judge would ever say: “I think the answer is “Yes” but I think an ordinary man would say “No”,” and if a judge did say that he would in my opinion be wrong. It is for a judge to construe the statute and it is for him to state his conclusion as to the meaning to be given to the word family” in the context in which it appears, giving it, unless the context otherwise requires its ordinary natural meaning"

That was a view espoused by Sir David Cairns in Watson -v- Lucas [1980] 1 WLR 1493 at 1507 where he said:

"I do not find Cohen LJ’s test as helpful in this case as it was in Brock -v- Wollams. To the question “Was Mr Lucas a member of Mrs Sullivan’s family” I have no idea what “an ordinary man” would answer. Stephenson LJ would answer “Yes” and Oliver LJ would answer “No”."

The principles of construction that I derive from these cases are that it is for the judge to give the word “family” its ordinary and natural meaning, remembering the context in which Parliament has used it. In my judgment the words “spouse” “wife” and “husband” are to be construed in the same way.

The second difficulty is that created by the decision of this court in Dyson Holdings -v- Fox [1976] 1 QB 503 CA that the meaning of words such as “family” in this schedule of this Act change as the ordinary and popular meaning of such words change, that is to say as the popular use made of such words change. James LJ at page 511D said:

"The popular meaning given to the word “family” is not fixed once and for all time. I have no doubt that with the passage of years it has changed. The cases reveal that it is not restricted to blood relationships and those created by the marriage ceremony. It can include de facto as well as de jure relationships. The popular meaning of “family” in 1975 would, according to the answer of the ordinary man, include the defendant as a member of Mr Wright’s family. This is not to say that every mistress should be so regarded. Relationships of a casual or intermittent character and those bearing indications of impermanence would not come within the popular concept of a family unit."

I would suggest that this statement is in conflict with the role of the judge in construing this statute as seen by Viscount Dilhorne in the passage from his speech cited above. The decision in Dyson Holdings Ltd -v- Fox was considered by Lord Diplock to pose “a difficult question” which was best left for consideration in a future case. The approach of this court to interpreting this legislation has been followed on many occasions in this court, albeit that some members of the court have followed it reluctantly expressing grave doubts as to the wisdom of such an approach. On the one hand such an approach can be said to prolong the life and usefulness of a statutory provision. On the other hand, it must inevitably increase the uncertainties which the imprecision of our language, even in the hands of skilled parliamentary draughtsmen, create and cause the judiciary to run the risk of being accused of usurping the legislative function. I suspect that changes in the ordinary and natural meaning of words which increase the scope of protection to those occupying premises with a tenant at the time of the tenant’s death would be acceptable, whereas changes in the ordinary and natural meaning of words which restricted the scope of such protection would not. The technique of the common law has been to adapt and advance the law progressively whilst being able to claim that the decision was an application of existing principles already disclosed in decided cases. This approach was modified in the 1970’s when the House of Lords determined that it might and would depart from a previous decision when it appeared right to do so because a too rigid a adherence to precedent might lead to injustice or unduly restrict the proper development of the law. The approach that is normally followed in the House of Lords and has to be followed in this court and other courts is one which ensures that the development of the law is gradual and progressive and to a degree predictable; attributes which may be thought to be beneficial to the administration of justice. The principle stated in Dyson’s case allows the judge who can detect a change in the ordinary popular meaning of a word used in a statute to escape from the doctrine of precedent. The principle makes it difficult logically to refuse an application by a party to be permitted to call evidence as to changes in the ordinary popular meaning of words; an application which all those members of this court were agreed was rightly refused by the judge in this case.

Having expressed my reservations with the decision in Dyson Holdings -v- Fox , I must, as have others in this court, follow it.

The trial judge’s finding that the appellant was not the “spouse” of the deceased is not contested in this appeal. It is accepted that the appellant was not the deceased’s “spouse”; that a spouse is a man who is married to a woman or a woman who is married to a man. Mr Luba relied on the deeming provision in paragraph 2(2) of the 1st Schedule. The appellant was, he submitted, a person who was living with the original tenant as his or her wife or husband.

The purpose of the sub-paragraph is, in my view, clear. It is to enable those who live together as if they are husband and wife but who are not legally married to have the same protection as a surviving spouse would have. The amendment reflected the growing numbers of men and women who choose to co-habit without being married. The amendment was necessary, despite the decision in Dyson Holdings Ltd -v- Fox because Parliament knew that the word “spouse” having as it does a precise meaning, would not be interpreted by the courts to cover men and women who were unmarried and cohabiting. The use of the words “wife” and “husband” makes clear, in my judgment, Parliament’s intention that the surviving spouse who is to succeed to the statutory tenancy on the death of the original tenant is to be either the female partner of a male original tenant or the male partner of a female original tenant. The use of the word “as” accommodated the fact that the survivor would not be the wife or husband of the deceased original tenant. That phrase is not wide enough, in my view in its ordinary and natural meaning to enable same sex partners to be treated as spouses.

In my judgment the words that Parliament chose to use when widening the scope of paragraph 2 did not significantly alter the meaning of the word “spouse”. Parliament did not substitute another word for the word “spouse” as Parliament would have done had Parliament intended to include in the scope of paragraph 2 same sex partners. Thus, in my judgment, the appellant cannot become the statutory tenant of this dwelling in succession to the late Mr Thompson.

Is the appellant entitled to an assured tenancy of the dwelling house by succession as a member of the original tenant’s family who was residing with him in the dwelling house at the time and for a period of two years immediately before the original tenant’s death under paragraph 3(1) of the Schedule? Mr Luba has argued very persuasively that the appellant is so entitled.

Here the terms of paragraph 6 of the Schedule are of some assistance. That paragraph suggests that a person can cease to be a member of the original tenant’s family, that is to say a person can have been a member of that family but have ceased to be a member in the period immediately before the death of the tenant. The wording would also suggest that a person can become a member of the original tenant’s family during his or her lifetime. That must be correct if the paragraph is to cover those who become married to or adopted by the original tenant.

The family envisaged in Schedule 1 is a group that a person can join or a person can leave. If you can leave the family, the family cannot be defined exclusively by ties of consanguinity. On the other hand, the requirement that the member of the family, in order to achieve the protection given either by paragraph 3 or paragraph 6 shall have resided with the tenant in the dwelling house for a period of time immediately before the tenant’s death demonstrates that the family is not to be defined by physical proximity, still less by the term “household”.

The conclusion that I have reached on this ground of this appeal is the same as that reached by my Lord Lord Justice Waite, namely that:

"The concept of the family is an entity bound together by ties of kinship including adoptive status or marriage”."

In Ross -v- Collins [1964] 1 WLR 425 Russell LJ said at page 432:

"Granted that “family” is not limited to cases of a strict legal familial nexus, I cannot agree that it extends to a case such as this. It still requires, it seems to me, at least a broadly recognisable de facto familial nexus. This may be capable of being found and recognised as such by the ordinary man - where the link would be strictly familial had there been a marriage, or where the link is through adoption of a minor, de jure or de facto, or where the link is “step-”, or where the link is “in-law” or by marriage. But two strangers cannot, it seems to me, ever establish artificially for the purposes of this section a familial nexus by acting as brothers or as sisters, even if they call each other such and consider their relationship to be tantamount to that. Nor, in my view, can a adult man and woman who establish a platonic relationship establish a familial nexus by acting as a devoted brother and sister or father and daughter would act, even if they address each other as such and even if they refer to each other as such and regard their association as tantamount to such. Nor, in my view, would they indeed be recognised as familial links by the ordinary man."

In Carega Properties SA [supra] at page 931 Lord Diplock adopted that passage from Russell LJs judgment.

In my judgment that is still the test to be applied; whether there is “at least a broadly recognisable de facto familial nexus”. In my opinion the ordinary popular meaning of the phrase “was a member of the original tenant’s family” would not, when considering Mr Thompson’s family include the appellant as a member of it. No doubt Mr Thompson and the appellant would have referred to each other as “family”. Mr Thompson might well have said, with gratitude, that the appellant was “all the family I have”. But that is not the same thing as being a member of the original tenant’s family for the purpose of being entitled to an assured tenancy of the dwelling house by succession.

I agree with both My Lords that the terms of this Schedule should be reconsidered with a view to bringing cases such as the present within the protection of Schedule 1. No doubt Parliament will consider whether the protection should be that afforded by paragraph 2 or that afforded by paragraph 3 of the Schedule. Nevertheless I am convinced that it is for Parliament to make the necessary changes after debate when considerations which may not have been raised in this appeal and which may not be apparent to this court can be taken into account. For those reasons and the reasons given by My Lord, Lord Justice Waite, after some hesitation, I would dismiss this appeal.

LORD JUSTICE WARD:

The questions raised in this appeal are deceptively easy to pose but I confess to having found them exceptionally difficult to answer. The questions are:-

1. Was Mr Fitzpatrick “living with the original tenant as his (or her) wife or husband” within the meaning of those words in paragraph 2(2) to Schedule 1 of the Rent Act 1977, as amended?

2. If not, was he “a person who was a member of the original tenant’s family...residing with him in the dwelling house at the time of and for the period of two years immediately before his death” within the meaning of paragraph 3(1) of the Schedule?

To answer those questions I shall consider the court’s established approach to this part of the Rent Act, to other aids to construction and to associated developments abroad before determining the meaning I give to these words. In the light of Waite L.J’s clear exposition of the history of the statutory law and the case law, I can be selective and not repetitive.

1. It is an Act which is “always speaking” and so should be given “a construction that continuously updates its wording to allow for changes since the Act was initially framed” as Bennion states in Section 288, Statutory Interpretation, Second Edition, p. 617, which recently received the approval of this court in R -v- Westminster Council, Court of Appeal 17th February 1997. That was the approach to the Act taken by the majority in Dyson Holdings Ltd -v- Fox [1976] QB 503. There James L.J.. said at p. 511D:-

"The popular meaning given to word “family” is not fixed once and for all times. I have no doubt that with the passage of years it has changed.”

Bridge L.J.., as he then was, said at p. 513 :-

"Can we give effect to this changed social attitude and consequent change in the scope of a common English word without doing violence to the doctrine of judicial precedent and notwithstanding that in this case the defendant’s status must be considered at the date of the original tenant’s death. I have felt some hesitation on both these points, but in the end have concluded that it would be unduly legalistic to allow either consideration to defeat the defendant’s claim. On the first point, if language can change its meaning to accord with changing social attitudes, then a decision on the meaning of a word in a statute before such a change should not continue to bind thereafter, at all events in a case where the courts have consistently affirmed that the word is to be understood in its ordinary accepted meaning. On the second point, where the modern meaning is plain, we should, I think, be prepared to apply it retrospectively to any date, unless plainly satisfied that at that date the modern meaning would have been unacceptable.”

That view came under criticism in Helby -v- Rafferty [1979] 1 W.L.R. 13, but it prevailed. Stamp L.J.. said at 16D-17A:-

"I confess that, apart from authority, I would have taken the view that language of a statute by whatever process you apply to its construction...cannot alter its meaning from time to time and that, in order to find out what Parliament intended by the statute, you must ascertain what the words of the statute meant when Parliament used those words....However, whatever my own doubts are, I must loyally follow the decision in Dyson Holdings Ltd -v- Fox .”

Roskill and Cumming-Bruce L.JJ. were equally loud in expressing their doubts but equally loyal in following the previous decision.

The House of Lords in C arega Properties S.A. -v- Sharratt [1979] 1 W.L.R. 928 declined the opportunity to settle the controversy. Lord Diplock said at 930B:-

"In particular, the difficult question posed by Dyson Holdings Ltd -v- Fox [1976] QB 503 as to the extent, if any, to which changed social attitudes towards cohabitation between unmarried couples and the offspring of such liaisons may have enlarged the meaning of the expression “family” in the Rent Act 1968 does not arise in the instant case and is best left for consideration in the light of the actual facts of the case in which it does arise.”

For my part I agree with the logic of the judgment of Bridge L.J.. The Rent Act is an act of social engineering and it must remain contemporaneously able to cope with the inevitable expansions and contractions of the structure it creates. In my judgment, therefore, the words have to be construed to bear the meaning they have in contemporary society.

2. In Brock -v- Wollams [1948] 2 K.B. 388 Cohen L.J.. said at p 395 that:-

"The question the county court Judge should have asked himself was this: Would an ordinary man, addressing his mind to the question whether Mrs Wollams was a member of the family or not have answered “yes” or “no.”?”

Lip-service has been paid to the test but the difficulties in its application were highlighted by Sir David Cairns in Watson -v- Lucas [1980] 1 W.L.R. 1493 at 1507 where he said:-

"I do not find Cohen L.J.’s test as helpful in this case as it was in Brock -v- Wollams [1949] 2 K.B. 388. To the question “Was Mr Lucas a member of Mr Sullivan’s family,” I have no idea what “an ordinary man” would answer. Stevenson L.J.. would answer “Yes” and Oliver L.J.. would answer “No”.”

It seems to me one cannot engage in a restless search for the views of the common man as if it is to be thought that he only travels on the Clapham omnibus and reads the Sun Newspaper - or is it the Daily Mail? The limited use of the test is exposed in C arega Properties S.A. -v- Sharratt where Lord Diplock said at 931B:-

"This test...does no more than say that “family” where it is used in the Rent Act is not a term of art but is used in its ordinary popular meaning.”

Viscount Dilhorne said at 932E:-

"It is for the judge to construe the statute and it is for him to state his conclusion as to the meaning to be given to word “family” in the context in which it appears, giving it, unless the context otherwise requires, its ordinary natural meaning.”

I conclude, therefore, that the meaning of the words is for me to decide as best I can giving the words their contemporary meaning and reminding myself of the opinion of the Lord President in the Scottish adoption case In re AMT, The Times 20th August 1966:-

"What he (the judge) must not do is permit his own personal views, or his own private beliefs, to affect his judgment.”

3. There have been relatively few attempts made to define “family” as the word is used in this Act. Russell L.J.. did so in Ross & anr -v- Collins [1964] 1 W.L.R. 425 dealing with the tenant and his housekeeper in which context he said at p. 432:-

"Granted that “family” is not limited to cases of a strict legal familial nexus, I cannot agree that it extends to a case such as this. It still requires, it seems to me, at least a broadly recognisable de facto familial nexus. This may be capable of being found and recognised as such by the ordinary man - where the link would be strictly familial had their been a marriage, or where the link is through adoption of a minor, de jure or de facto, or where the link is “step-”, or where the link is the “in-law” or by marriage. But two strangers cannot, it seems to me, ever establish artificially for the purposes of this section a familial nexus by acting as brothers or sisters, even if they call each other such and consider their relationship to be tantamount to that nor, in my view, can an adult man and woman who establish a platonic relationship establish a familial nexus by acting as a devoted brother and sister or father and daughter would act, even if they address each other as such and even if they refer to each other as such and regard their association as tantamount to such. Nor, in my view, would they indeed be recognised as familial links by the ordinary man.”

That was adopted by the House of Lords in Carega Properties when Lord Diplock “would not seek to improve upon what was said there.” So the test for the meaning of “family” which binds us is “ (1) at least (2) a broadly recognisable (3) de facto (4) familial nexus,” my changes and emphasis added.

1. Harrogate Borough Council -v- Simpson [1984] 17 HLR 205 is a case very close in point. It related to a secure tenancy which was a new form of public sector tenancy created by the Housing Act 1980. That permitted succession on the death of the tenant to the tenant’s spouse or another member of the tenant’s family (section 30) and section 50(3) expressly provided that “ a person is a member of another’s family...if they live together as husband and wife”. The survivor in the lesbian partnership did not qualify for the reasons already recited in Waite L.J.’s judgment. I do not regard myself as absolutely bound to follow that case for both reasons advanced by Mr Jan Luba, counsel for the appellant. In the first place, it is a decision on a different statutory provision and in the second place I must give effect to the contemporaneous meaning of the words of the Rent Act. Mr Luba did not strenuously argue that the language differences were significant, and, whilst I may not be strictly bound by the interpretation given by this court in Harrogate B.C. -v- Simpson , its authority is obviously very persuasive.

As to the language of the two statutes, I would make these observations. Although the words are not identical, I confess that I can see very little difference in the meaning to be given to “a person who was living with the original tenant as his or her wife or husband” for Rent Act purposes and “if...(the tenant) and that person live together as husband and wife” for Housing Act purposes. What is different is that for Rent Act purposes since 1988, the person living with the tenant is treated as his spouse whereas under the Housing Act definition, that person is a member of the tenant’s family. If the person living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant, that person is deemed to be something which he is not. Can he be deemed to be the husband when he is of the same sex as the tenant or deemed to be the wife even though he is a male? If that is so, the need for a man and a woman is less essential under the Rent Act definition than it was in Harrogate B.C. -v- Simpson.

The difference in the language used is, however, much more marked in dealing with who members of the tenant’s family are. For Housing Act purposes, the spouse and one who lives with the tenant as husband and wife are included in the definition of family members. Other members are closely defined and are limited to “parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece” where relationships by marriage is treated as a relationship by blood, half blood as whole blood, stepchild as his child and illegitimate child as legitimate: see section 50(3)of the Housing Act 1980 replaced by section 113 of the Housing Act 1985, and now, with the removal of the otiose reference to illegitimacy, section 62 of the Housing Act 1996. By contrast there is no definition at all given to “members of the original tenant’s family” in the Rent Act. That contrast is made even more sharp by the oddity that when Parliament enacted the Housing Act 1980 introducing definitions for council and housing association tenants, the Act did not amend schedule 1 to the Rent Act 1977 to bring private sector tenants into line even though it then had the Rent Act in mind . It did make minor amendment to the Rent Act in 1980 but only to substitute “surviving spouse” for “widow”, perhaps after Oliver L.J.. had drawn attention to this anachronism as “one of the curiosities of the statutory provisions”: see Watson -v- Lucas [1980] 1 W.L.R. 1492 at 1502C. The legislature would have been aware that “family” was being given its contemporaneous and shifting meaning by Dyson Holdings -v- Fox, subject to the guidance given by the House of Lords in Carega Properties -v- Sharratt. The implication is, therefore, that Parliament was content for the courts to decide, as and when the question arose, who was or was not a member of the original tenant’s family.

When it comes to the meaning of living together as husband and wife, I readily see the force of the submission of Mr Chapman, for the respondents, that if Parliament disagreed with the reasoning of Watkins L.J.. in Harrogate Borough Council -v- Simpson then it passed by the opportunity to say so when the Rent Act was amended in 1988 specifically to introduce “a person living with the original tenant as his or her husband or wife”, and moreover to “treat (that person) as the spouse of the original tenant.” Watkins L.J.. had accepted the submission that:-

"If Parliament had wished homosexual relationships to be brought into the realm of the lawfully recognised state of a living together of man and wife for the purposes of the relevant legislation, it would plainly have so stated in that legislation, and it has not done so.”

The assumption must be, he submits, that Parliament thought the decision was correct. It is a powerful point.

2. There are other comparable statutory provisions. In the Domestic Violence and Matrimonial Proceedings Act 1976, section 2(2) provided:-

"References ...to the parties to a marriage include references to a man and a woman who are living with each other in the same household as husband and wife...” my emphasis added.

Such language clearly justifies the view taken by Ewbank J. in Harrowgate B.C. -v- Simpson when he said:-

"The essential characteristic of living together as husband and wife, in my judgment, is that there should be a man and a woman and that they should be living together in the same household”

The point can, therefore, be made, per contra Watkins L.J, that where Parliament wished gender to be expressly determinative, Parliament can and does say so and when it does not, gender is not critical.

The Social Security Contributions and Benefit Act 1992 set out its definitions in section 137. It included in the definition of “family” “a married or unmarried couple” and defined “unmarried couple” as:-

"A man and a woman who are not married to each other but are living together as husband and wife...”

Here again Parliament is deliberately defining the couple as a man and a woman. The point is put in sharper focus by the comparison with the earlier definition in paragraph 3 of schedule 1 to the Supplementary Benefits Act 1976 which dealt with the position where “two persons who are not married to each other are living together as husband and wife...” If the two definitions mean the same, why was there a need to change the wording?

The construction of these various provisions and their predecessors is also quite interesting. In R -v- West London Appeal Tribunal, Ex Parte Barnet April 11th 1973 , Lord Widgery C.J. said:-

"We have been invited to give some guidance upon the phrase “cohabiting as man and wife”, but for my part it is so well known that nothing I could say about it could possibly assist in its interpretation hereafter.”

Nevertheless, in Crake -v- Supplementary Benefits Commission [1981] 2 F.L.R. 264, Woolf J. (as he then was) said:-

"If there is the fact there is they are living together in the same household, that may raise the question as to whether they are living together as man and wife, and, indeed, in many circumstances may be strong evidence to show that they are living together as man and wife; but in each case it is necessary to go on and ascertain, in so far as this is possible, the manner in which and why they are living together in the same household...”

A more recent example of legislation on this subject is given by section 2 of The Law Reform (Succession) Act 1995 which defined the class of cohabitant able to apply to the court for financial provision out of the estate of the deceased partner. The new section 1A of the Inheritance (Provision for Family and Dependants) Act 1975 now provides:-

"This subsection applies to a person if...the person was living - (a) in the same household as the deceased, and (b) as the husband or wife of the deceased.”

In the course of the second reading of the Bill in the House of Lords, Lord Meston observed, “I assume that (the Bill) will not extend to cohabitants of the same sex”. The Lord Chancellor replied, “ ‘Living as husband and wife’ appears to us, as the law stands, to apply to persons of opposite sex and not to partners of the same sex”.

In the cauldron in which family law reforms were enacted in 1996, with divorce reform being aimed at upholding the sanctity of marriage, section 62 of the Family Law Act 1966 replacing the Domestic Violence Act of 1976 to which I have referred, repeated its definitions and defined “cohabitants” as “a man and a woman who, although not married to each other, are living together as husband and wife.” Once again the gender implications are put beyond dispute.

Mention of controversial legislation immediately prompts a reminder of section 28 of The Local Government Act 1988 which provided that:-

"A local authority shall not...(b) promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship,” my emphasis added.

The inference there is obvious: Parliament was then - and in that context - unwilling to accept a homosexual relationship as a family relationship.

After I had begun this judgment, I discovered even more pertinent Parliamentary consideration of this and allied topics. When the Housing Act 1996 was before Parliament, the Standing Committee accepted an amendment to section 17(4) of The Housing Act 1988 (succession to assured periodic tenancy) as well as amendment to section 113 of the Housing Act 1985 as proposed by Ms Glenda Jackson to the effect that succession should pass not only to “a person who was living with the tenant as his or her wife or husband” but that it should also pass to “where they are of the same sex and (the tenant) and that person live together in a corresponding relationship.” When, however, the Bill came back to Parliament, (and when, incidentally, Mr Ashby seems to have referred to the Appellant’s position), the Minister sought to reverse that change. He felt that (Hansard 30th April 1996 Column 985):-

"A joint tenancy is the better solution, but there may be situations where a person has been sharing a household with someone else who is a sole tenant but for some reason has not sought to have the tenancy converted to a joint one. When the tenant dies the other person will not have the right to take up that tenancy. In such cases if the person had been living with the tenant for a year before the tenant’s death, had been looking after the tenant, or had, or accepted, responsibility for his or her dependant, we would normally expect the local authority to grant the tenancy to that person or find them suitable alternative accommodation...There has been concern about a lack of uniformity among local authorities in how they respond to such situations. I propose to deal with that by issuing guidance shortly, which will set out unambiguously the Government’s view that, taking into account the need to make the best use of their stock, local authorities should normally provide - those will be the words that will appear in the guidance - for the type of cases I have described by granting either joint tenancies or a further tenancy where the sole tenant has died. That will be unequivocal guidance, and it will not be confined to couples with a sexual relationship. We will pay close attention to the way in which local authorities implement it.”

In column 986 he said:-

"...the clause moved by the Hon. Member for Hampstead and Highgate (Ms Jackson) referred to people living a relationship corresponding to that of husband and wife. I draw the conclusion that that could bear only one interpretation. My concern was not to exclude those circumstances but to widen them, so that people living in the sort of relationships I have described would also be covered by the scope of my proposals. I am proposing a more inclusive alternative, not an exclusive one,” my emphasis added.

As a result the Bill passed without those changes being effected and consequently “members of a person’s family” are defined in sections 62 and 140 in the same terms as they appear in section 113 of the Housing Act 1985 (adapted in the light of the Family Reform Act 1987 to remove the unnecessary references to illegitimacy.)

I do not find it easy to draw any clear-cut conclusion from this excursus into comparable legislation. On the one hand, if “living together as husband / man and wife” has such a settled meaning that the couple have to be of different sex, why is it necessary sometimes specifically to say that the relationship has to be between a man and a woman? The truth may be the Parliamentary draftsman, omniscient though he is, sometimes simply did not think about these matters at all, but it is heresy to say that.

3. ASSOCIATED DEVELOPMENTS HERE AND ABROAD.

I agree with my Lords that we should not permit sociological evidence to be given to assist in finding the current ordinary meaning of the words we have to construe. That may come as some surprise to our brothers and sisters in Canada where very interesting developments are occurring, aided by the kind of expert evidence we have rejected. These developments have been made possible by the use of the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act 1985. We were referred to Re Attorney General of Canada and Mossop 100 D.L.R. 658 where the issue was whether an individual in a long term homosexual relationship was properly denied bereavement leave payable to the members of a deceased employee’s “immediate family” which included a “common law spouse” defined to mean a person of the opposite sex. The question was whether this was a prohibited discrimination on the grounds of “family status.” The majority defined family narrowly in terms of the traditional family being one composed of a married man and woman and their children. The minority were prepared to take a broader view because “not all variables are present in any given family and there is no one variable that is present in all families.” In the view of the minority a family might be “two or more persons who share resources, share responsibility for decisions, share values and goals, and have commitments to one another over time.”

I have discovered that challenges along these lines have continued. In Egan -v- Canada [1995] 124 D.L.R. 609, the issue was whether the younger partner of a homosexual couple should be treated as the elder’s “spouse” for the purposes of old age pension. Section 15 of the Charter prohibits discrimination based on “race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” The court was unanimous in finding that sexual orientation was a ground of discrimination. Le Forest J. said:-

"I have no difficulty accepting the appellants’ contention that whether or not sexual orientation is based on biological or physiological factors, which may be a matter of some controversy, it is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal cost, and so falls within the ambit of section 15 protection as being analogous to the enumerated grounds.”

The court was divided as to whether this was in fact discrimination or not. In the judgment of four members of the court, per Iacobucci J. at paragraph 180:-

"Looking at the Act from the perspective of the appellants, it can be seen that the legislation denies homosexual couples equal benefit of the law. The Act does this not on the basis of merit or need, but solely on the basis of sexual orientation. The definition of “spouse” as someone of the opposite sex reinforces the stereotype that homosexuals cannot and do not form lasting, caring, mutually supportive relationships with economic interdependence in the same manner as heterosexual couples. The appellants’ relationship vividly demonstrates the error of that approach.”

That might have been written with this appeal in mind.

This has been carried even further by the Ontario Court of Appeal in M & H -v- Attorney General of Ontario, February 1997 upholding the decision reported at [1996] 132 D.L.R. 538. That involved a claim made after the breakdown of a lesbian relationship in which one party claimed against the other interim and permanent support under the Family Law Act 1990 which defined “spouse” to include a man and a woman who were not married to each other and had lived together in a “conjugal relationship”. That definition was held to discriminate against those who lived together in a same-sex relationship and to escape censure, a “man and a woman” who have cohabited together in a conjugal relationship should be read as “two persons” who have cohabited together.

In Tooner -v- Australia Communication [1994] 1-3 I.H.R.R. 97 the Human Rights Committee concluded that Article 26 of the International Covenant on Civil and Political Rights dealing with discrimination based on sex, included discrimination based on sexual orientation.

So far as the European Convention on Human Rights is concerned, the respondent in Harrogate B.C. -v- Simpson , having failed to get leave to appeal to the House of Lords went to the European Commission. They held :-

"As regards family life, the Commission recalls that it has already found that, despite the modern evolution of attitudes towards homosexuality, a stable homosexual relationship between two men does not fall within the scope of the right to respect for family life ensured by Article 8 of the Convention.”

As regards private life, the Commission accepted that the applicant’s relationship did constitute a matter affecting their private life but as the applicant then lived alone there was no current interference. Even if there was a breach of her right to respect for her home, such interference was in accordance with the law and was necessary for the protection of the contractual rights of the landlord to have the property back at the end of the tenancy. The Commissioner accepted that the treatment accorded to the applicant was different from the treatment she would have received if the partners had been of different sexes and, accepted, it would seem, that sexual orientation was a sufficient ground of discrimination but the Commission considered that the family (to which the relationship of a heterosexual unmarried couple living together as husband and wife can be assimilated), merited special protection in society and was therefore justified.

So far as I can check, the decisions upon which the court there relied were X & Y -v- The United Kingdom Application No 9369/81 and Kerkhoven -v- The Netherlands, Application No 15666/89. I know of no later consideration of the position of gay and lesbian partners.

In the case of X Y & Z -v- United Kingdom [75/1995/581/667] the European Court of Human Rights recorded the Commission’s opinion that the relationship between X & Y, where X was a transsexual, could not be equated with that of a lesbian couple since X was living in society as a man, having undergone gender reassignment surgery. The court, noting that distinction without either agreeing with it or dissenting from it, did say in paragraph 36 that:-

"When deciding whether a relationship can be said to amount to “family life”, a number of factors may be relevant, including whether the couple lived together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means...”

The Court accordingly found Article 8 to be applicable for transsexuals but, to date, homosexuals seem to be excluded.

As I draft this judgment I hear that the case of Grant -v- South-West Trains begins its hearing before the European Court to decide whether the applicant, a female employee, has been discriminated against on the grounds of sex in breach of the Equal Pay Act 1970, Article 119 of the Treaty and/or the Directive. Her contract entitled her to certain travel concessions for:-

"(a). the employee’s spouse (i.e. legally married husband or wife) and

(b) One common law opposite sex spouse, but in this case the applicant must make a statutory declaration that a meaningful relationship (i.e. living together) has existed for a period of two years or over.”

The applicant was refused the concession for her same-sex partner. The Industrial Tribunal referred the matter to the European Court to decide whether this discrimination based on sexual orientation is unlawful. Time will tell.

The European Court may well have another opportunity to consider the matter because Lightman J. has referred to it the question of whether or not the dismissal of a homosexual serviceman from the Royal Navy can be justified under Article 2.2 of the Equal Treatment Directive (76/207/EEC). In his judgment in R -v- The Secretary of State for Defence The Times 13th March 1997:-

"Homosexual orientation is a reality today which the law must recognise and adjust to, and it may well be thought appropriate that the fundamental principal of equality and the irrelevance of a person’s sex and sexual identity demand that the court be alert to afford protection to them and ensure that those of homosexual orientation are no longer disadvantaged in terms of employment, save and unless the discrimination is justified under Article 2.2....

The concern of the European Court is to ensure that law adapts itself to meet new problems which were unconsidered, even as they had not yet revealed themselves at the date of the directive but which emerged later, and to resolve them according to fundamental principles or values underlying the directive and ensuring that the law reflects, not outdated views, but current values.”

This is the language of Dyson Properties Ltd -v- Fox.

His views do not stand easily alongside the findings of Sir Thomas Bingham M.R. in Reg. -v- Minister of Defence, Ex Parte Smith [1996] QB 517, the case of other homosexuals dismissed from the services. The Master of the Rolls said at p. 560H:-

"I find nothing whatever in the E.E.C. Treaty or in the Equal Treatment Directive ETT which suggests that the draftsmen of those instruments were addressing their minds in any way whatever to problems of discrimination on grounds of sexual orientation. Had it been intended to regulate discrimination on that ground it could easily been done, but to my mind it plainly was not.”

I note the resolution of the European Parliament of 8th February 1994 to sweep away any unequal treatment based on sexual orientation. I note too how a number of European countries have begun moves in that direction by permitting same-sex couples to enter into agreements regulating their property and inheritance rights just as non-married heterosexual couples can do. This is allowed in Denmark, Norway, Sweden, Greenland, Iceland, Hungary and Holland. In the Australian Capital Territory the Domestic Act 1994 has gone so far as to define “domestic relationship” as:-

"A personal relationship (other than a legal marriage) between two adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other, and includes de facto marriage.”

Denmark and Holland are debating gay marriage. The Supreme Court of Hawaii has ruled it unconstitutional to deny homosexuals the right to marry and the United States government has appealed that ruling to the Supreme Court. On the other hand the New Zealand court has denied a claim by lesbians to be permitted to marry.

Interesting though these developments may be, they are no more than straws in the wind. Of much greater direct significance is the decision of the New York Court of Appeal in Braschi -v- Stahl Associates Company [1989] N.Y.S. 2nd 784. For those in the majority, it was fundamental that “in construing the words of a statute “the legislative intent is the great and the controlling principle”.” At p. 787 it held:-

"To accomplish its goals, the legislature recognised that not only would rents have to be controlled, but that evictions would have to be regulated and controlled as well...The manifest intent of this section is to restrict the landowner’s ability to evict a narrow class of occupants other than the tenant of record.”

At p. 788/789 they reached their conclusions that:-

"We conclude that the term family...should not be rigidly restricted to those people who have formalised their relationship by obtaining, for instance, a marriage certificate or an adoption order. The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life. In the context of eviction, a more realistic, and certainly equally valid, view of a family includes two adult lifetime partners whose relationship is long term and characterised by an emotional and financial commitment and interdependence....This definition of “family” is consistent with both of the competing purposes of the rent-control laws: the protection of individuals from sudden dislocation and the gradual transition to a free market system. Family members, whether or not related by blood, or law who have always treated the apartment as their family home will be protected against the hardship of eviction following the death of the named tenant, thereby furthering the legislature’s goals of preventing dislocation and preserving family units which might otherwise be broken apart upon conviction. This approach will foster the transition from rent control to rent stabilisation by drawing a distinction between those individuals who are, in fact, genuine family members, and those who are mere room mates.”

The minority did not appear to take great issue with that view of the purpose of the Act, but in their judgment at p. 793:-

"The State concerns underlying this provision include the orderly and just succession of property interests (which includes protecting a deceased’s spouse and family from loss of their long time home) and the professed State objective that there be a gradual transition from Government regulation to a normal market of free bargaining between landlord and tenant.”

In the conclusion of the minority, however:-

"Those objectives require a weighing of the interests of certain individuals living with the tenant of record at his or her death and the interests of the landlord in regaining possession of its property and re-renting it under the less onerous rent-stabilisation laws. The interests are properly balanced if the regulation’s exception is applied by using objectively verifiable relationships based on blood, marriage and adoption, as the State has historically done in estate succession laws, family court acts and similar legislation....Such an interpretation promotes certainty and consistency in the law and obviates the need for drawn out hearings and litigation focusing on such intangibles as the strength and duration of the relationship and the extent of the emotional and finical interdependency.”

These were powerful arguments both ways.

1. I begin with the purpose of the Rent Act which is essentially to give tenants fair rents and a status of irremovability. In Curl -v- Angelo [1948] 2 All E.R. 189 at 192, Lord Greene M.R. described “the real fundamental object of the Act” to be “protecting a tenant from being turned out of his home.” In Lloyd -v- Sadler [1978] Q.B. 774 Lawton L.J.. said at 790:-

"The object of the Act of 1968 was to give security of tenure to persons...The Act of 1968 took away many of the landlords rights at common law and was intended to do so for the benefit of tenants.”

As Lord Greene M.R. had earlier said in Cumming -v- Danson [1942] 112 L.J.. K.B. 145 at 146 that the Acts were:-

"... for the protection of tenants, and not Acts for the penalising of landlords.”

The teleological interpretation supports the conclusion that there is no justification for limiting the class of persons entitled to the benefit of the Rent Act on the basis that the interference with the landlord’s right to possession should be curtailed because the Act has a penal effect: on the contrary, the broad purpose of the Act is to preserve the family home for tenants and their successors. Consequently, those who occupy the property as their home should wherever it is possible - but of course not beyond that - be given protection against eviction.

2. As I have already explained, the words of this Act must be given their contemporary meaning. Professor Ronald Dworkin expressed the point well in “Law’s Empire”, 1986, p.348, when he said:-

"The judge interprets not just the statute’s text but its life, the process that begins before it becomes law and extends far beyond that moment....His (the judge’s) interpretation changes as the story develops.”

Since families are dynamic, the statutory interpretation must equally reflect the motive forces, physical or moral, affecting behaviour and change in domestic organisation. On reading Professor Zimmermann’s article, “Statutes and the Common Law: a Continental Perspective,” [1997] C.L.J. 315, 323, I realise, with some apprehension (but with some pleasure at the recollection of it) how close I am to a return to Celsus, The Digest of Justinian, D 1, 3, 17, whose rule of interpretation was, “ Scire leges non hoc est verba earum tenere, sed vim ac potestatem:” to know the laws is not a matter of sticking to their words, but of grasping their force and tendency.

3. Since the inception of the Rent Acts in or before 1920, the home of members of the tenant’s family has been preserved for them. As the decided cases show, the meaning of family has been progressively extended. The movement has been away from the confines of relationships by blood and by marriage to the reality of family life, and from de jure to de facto relationships. We need to analyse how that has come to pass. In 1950 Mr Ekins was not a member of Mrs Smith’s family because, per Asquith L. J., the decisions which bound them limited membership of the same “family” to three relationships: firstly that of a child; secondly those constituted by way of legitimate marriage like that between a husband and wife; and thirdly relationships whereby one person becomes in loco parentis to another. In that case the masquerade as husband and wife was not enough. The form of their relationship - an unmarried couple - overcame the substance of the way they functioned akin to a married couple. By 1976 Mrs Fox had become a member of the family because the ordinary man recognised that this was not a relationship, per James L.J., “of a casual or intermittent character ...bearing indications of impermanence (as) would not come within the popular concept of a family unit.” The trend in the cases, as I see them, is to shift the focus, or the emphasis, from structure and components to function and appearance - what a family does rather than what it is, or putting it another way, a family is what a family does. I see this as a functionalist approach to construction as opposed to a formalist approach. Thus whether the Carega Properties test is satisfied i.e. whether there is “at least a broadly recognisable de facto familial nexus,” or a conjugal nexus, depends on how closely the alternative family or couple resemble the traditional family or husband and wife in function if not in precise form.

4. We do not have (or should I say we do not yet have?) the equivalent of the Canadian Charter Rights which enables the judges to strike down offensive discriminatory legislation. I must, therefore, be faithful to Parliament’s sovereign will. Nevertheless, I am entitled to presume that Parliament always intends to conform to the rule of law as a constitutional principle and accordingly to respect the constitutional rights of the individual to enjoy equality under the law. I agree with the majority of the Canadian Supreme Court in Egan -v- Canada at p. 631 where L’Heureux-Dube J. said:-

"Equality, as that concept is enshrined as a fundamental human right within section 15 of the Charter, means nothing if does not represent a commitment to recognising each person’s equal worth as a human being, regardless of individual differences. Equality means that our society cannot tolerate legislative distinctions that treat certain people as second - class citizens, that demean them, that treat them as less capable for no good reason, or that otherwise offend fundamental human dignity.”

If, therefore, there is doubt about the ordinary meaning of the words of the statute, I would strain to place upon them that construction which produces a dignified result consistent with the purpose of the Act.

5. To exclude same-sex couples from the protection the Rent Act proclaims the inevitable message that society judges their relationship to be less worthy of respect, concern and consideration than the relationship between members of the opposite sex. The fundamental human dignity of the homosexual couple is severely and palpably affected by the impugned distinction. The distinction is drawn on grounds relating to their personal characteristics, their sexual orientation. If the law is as my Lords state it to be, then it discriminates against a not insignificant proportion of the population who will justly complain that they have been denied their constitutional right to equal treatment under the law.

6. There being no remedy to cure such injustice, my approach will, therefore, be to say that if I find the statute ambiguous, or even if I left in doubt as to its meaning, then I should err on the side of preventing that discrimination.

1. “As” means “in the manner of” and suggests how the couple functioned, not what they were. I agree with the test of Woolf J in Crake -v- Supplementary Benefits Commission which, so far as I can tell, was not referred to this court in Harrogate B.C. -v- Simpson. There being no dispute but that the appellant and the deceased were living together, it is “necessary to go on and ascertain in so far as this is possible, the manner in which and why they (were) living together in the same household.” If asked, “Why?”, would not both they and also the heterosexual couple equally well reply, “Because we love each other and are committed to devote comfort and support to each other.” I can readily envisage that the immediate response to the question, “How do you two live together?” may well be, “As a gay couple.” But when the next question is asked, “In what manner do you, a gay couple, live together?” would their answer be any different from that given by the heterosexual couple save only in the one respect that in their case their sexual relations are homosexual, not heterosexual? No distinction can sensibly be drawn between the two couples in terms of love, nurturing, fidelity, durability, emotional and economic interdependence - to name but some and no means all of the hallmarks of a relationship between a husband and his wife.

3. With regard to the only distinguishing feature, sexual activity, that is a function of the relationship of a husband and his wife, a man and his mistress and it is a function of homosexual lovers. That the activity takes place between members of different sexes or of the same sex is a matter of form not function. Since the test I would apply is functionalistic, the formalistic difference can be ignored.

4. It was Parliament’s will in 1996 that public sector homosexual partners enjoyed protection from eviction, albeit only by use of guidelines issued to the local authority. Given that the broad intention of the Rent Act is to protect against the loss of one’s home, then conferring protection by extending paragraph 2(2) to include the homosexual partnership is to provide the private sector tenants with security comparable to their public sector counterparts. Since the Glenda Jackson amendment was withdrawn in order not to exclude the homosexual couple but to extend protection to others, I consider I am more likely to reflect Parliament’s will by finding for the appellant than by finding against him.

5. I would say there is no essential difference between a homosexual and a heterosexual couple and accordingly I would find that the appellant had lived with the deceased tenant as his husband or wife.

1. The Oxford English dictionary defines family as:-

"1. The servants of a house or establishment; the household.

2. The body of persons who live in one house and under one head, including parents, children, servants etc.

3. A group of persons consisting of the parents and their children whether actually living together or not; in the wider sense, the unity formed by those who are nearly connected by blood or affinity.”

Mr Chapman contends for the third meaning. This is the “traditional” family. The moment one uses the adjective to qualify the noun, the clearer it is that the meaning is wide.

2. The textbook The Family, Law and Society, 4th Addition by Hoggett (Mrs Justice Hale), Pearl (His Honour Judge Pearl), Cooke and Bates state on the first page of their work:-

"In the England of the 1990s, we must not assume that the answer to the question “What is a family?” is necessarily going to produce a simple and straight forward response....The following extract comes from the Judicial Studies Board’s handbook on ethnic minority issues [1994]:...

Despite the fact that these images may have some basis in reality, as rigid stereotypes they can be misleading and dangerous. They over-generalise some tendencies, and conceal the existence of considerable diversity in family composition among Britain’s minority ethnic communities. They also do nothing to help with understanding why there may be differences in family patterns between ethnic groups.”

Should one not, therefore, also question the validity of a heterosexual stereotype for the family?

3. The test has to be whether the relationship of the appellant to the deceased was one where there is at least a broadly recognisable de facto familial nexus. I would not define that familial nexus in terms of its structures or components: I would rather focus on familial functions. The question is more what a family does rather than what a family is. A family unit is a social organisation which functions through its linking its members closely together. The functions may be procreative, sexual, sociable, economic, emotional. The list is not exhaustive. Not all families function in the same way. Save for the ability to procreate, these functions were present in the relationship between the deceased and the appellant.

4. Whilst there clearly is no right of self-determination it cannot be immaterial to have regard to the view the parties have of their own relationship. If the officious commuter on the Clapham omnibus had paid a visit to the deceased’s household, asked all the relevant questions about their relationship and asked the deceased finally, “What is Mr Fitzpatrick to you? Is he one of the family?”, it seems to me to be inconceivable that the deceased would not have testily suppressed him by replying, “Of course he is.” I doubt whether the ordinary man would be surprised by the answer as he apparently would have been hearing Ms Simpson. I am quite certain that he would not treat the answer as an abuse of the English language. Indeed I am satisfied that the ordinary man is liberated enough to accept in 1997 or even in 1994 looking broadly at the appellant’s life and comparing it with the other rich patterns of family life he knows, that the bond between the appellant and the deceased was de facto familial.

5. I would therefore conclude that if, which is my preferred view, they were not living as a husband and his wife would live, then at least they were living as members of a family.

Writing on “Financial Rights in Relationships outside Marriage: a Decade of Reforms in Australia,” International Journal of Law and the Family [1995], 233 Professor Bailey-Harris says:-

"A pluralist society requires the law not merely to tolerate but rather to recognise and support diversity in family formation - in other words to authenticate a range of family forms.”

In my judgment our society has shown itself to be tolerant enough to free itself from the burdens of stereotype and prejudice in all their subtle and ugly manifestations. The common man may be vaguely disapproving of the homosexual relationship which is not for him but, having shrugged his shoulders, he would recognise that the relationship was to all intents and purposes a marriage between those partners. They lived a life akin to that of any husband and wife. They were so bound together that they constituted a family.

I would, for my part, answer both questions posed at the beginning of this judgment in the affirmative.

I have not reached this decision lightly. In truth, it has caused me a great deal of anxiety. I have worried that I have gone too far. If it is a matter for Parliament, and not for me, I hope Parliament will consider it soon. I have endeavoured to reflect public opinion as I see it but I am very conscious that public opinion on this topic is a continuum and it is not easy to see where the line is to be drawn. As the Master of the Rolls, Sir Thomas Bingham said in R -v- Ministry of Defence, Ex Parte Smith [1996] QB 517 at 554C:-

"A belief which represented unquestioned orthodoxy in year X may have become questionable by year Y and unsustainable by year Z.”

I have come to a clear conclusion that Harrogate B.C. -v- Simpson was decided in year X; my Lords, for reasons with which I could well have agreed, believe us to be in year Y whereas I have been persuaded that the discrimination would be thought by the broad mass of the people to be so unsustainable that this must by now be year Z. To conclude otherwise would be to stand like King Canute, ordering the tide to recede when the tide in favour of equality rolls relentlessly forward and shows no sign of ebbing. If I am to be criticised - and of course I will be - then I prefer to be criticised, on an issue like this, for being ahead of the times, rather than behind the times. My hope, to reflect the intent of this judgment, is that I am in step with the times. For my part, I would have allowed this appeal.

Order: Appeal dismissed with costs - Section 18 of the Legal Aid Act