Ghaidan v Godin-Mendoza

Legal Case Summary

Ghaidan v Godin-Mendoza [2002] EWCA Civ 1533; [2004] UKHL 30

Succession by a homosexual partner to a statutory tenancy under the Rent Act 1977

Facts

From 1983, the defendant, Juan Godin-Mendoza (JGM) and his homosexual partner Hugh Wallwyn-James (HWJ) shared a flat which was subject to a statutory tenancy granted upon HWJ under the Rent Act 1977 (RA). On HWJ’s death in 2001, the landlord, Ahmad Ghaidan brought proceedings against JGM in the County Court, claiming possession of the flat.

History of the case

JGM claimed that he had succeeded to the statutory tenancy as spouse of the deceased, under the provisions of Schedule 1, para 2 of the RA 1977. The County Court judge, basing his decision on Fitzpatrick v Sterling Housing Association Ltd [1999] 4 All ER 705 stated that a same-sex relationship was not equivalent to a spousal relationship. The defendant, JGM appealed, contending that he was precluded by Fitzpatrick to be awarded a statutory tenancy, and stating that the decision in Fitzpatrick had to be reconsidered in light of the Human Rights Act 1998 (HRA).

The Court of Appeal (CA) stated that although the facts of the case were not dissimilar to those in Fitzpatrick, the HRA imposed on the Court an obligation to interpret the RA 1977 to be compatible with the European Convention on Human Rights (ECHR) and the HRA. Therefore it was important to determine if Fitzpatrick secured freedom from discrimination under Article 14. The CA was bound by the decision on the application of Article 14 in Wandsworth London BC v Michalak [2002] EWCA Civ 271, to find a comparator who had been treated differently from JGM; here, the comparator was a heterosexual couple.

A further question was if in order to invoke Article 14 it was necessary that other Convention rights were also engaged. In Petrovic v Austria (2001) 33 EHRR 307 the Strasbourg Court stated that Article 14 comes into play if the subject-matter of the disadvantage is linked to a guaranteed right. As such, the ambit of Article 14 is wide and can be engaged by infringement of Article 8.

The landlord claimed that Article 8 was not engaged; it was concerned with interference with a home by the State, and it did not apply to a case between private litigants. Furthermore, JGM was allowed to stay in the property albeit as an assured tenant, not a statutory tenant. The CA stated that Article 8 imposed positive obligations on public authorities to protect a person’s rights in respect of home and family life. The CA was a public authority and the case fell, therefore, within the ambit of Article 8. Furthermore, the Strasbourg Court had ruled in Inze v Austria (1987) 10 EHRR 394 that Article 14 is engaged also in respect of future interests.

The CA stated that Parliament had extended the protection afforded to family life and home under para 2 of the RA to unmarried and childless couples. The House of Lords in Fitzpatrick followed the wishes of Parliament but failed to recognise that Parliament did not state that the legislation excluded homosexual couples.

The landlord claimed that at Union level, extension of rights to homosexual couples had been denied in Grant v South-West Trains Ltd (C-249/96) [1998] All ER (EC) 193 and the European Court (ECJ) had ruled that denying this extension was not discriminatory because as far as the European Commission on Human Rights was concerned, national provisions for the protection of the family can afford more favourable treatment to married people or people of the opposite sex living together. Consequently, it is not required under Union law to treat a relationship between people of the same sex equally to one between people of the opposite sex.

The CA stated that discrimination on grounds of sexual orientation had to be looked at under more general principles in Article 14. As shown in Salgueiro v Portugal (2001) 31 EHRR 1055 the Convention does not tolerate distinctions based on sexual orientation.

The landlord was granted further appeal to the House of Lords, [2004] UKHL 30, which upheld the decision of the Court of Appeal, and also ruled in favour of JGM.

Issues

The meaning of spouse under Schedule 1, para 2 of the 1977 Act is a person living with the original tenant as his or her wife or husband, regardless of marriage. The spouse of the deceased could succeed in a statutory tenancy if living in the property with the deceased previous to his death. The defendant, JGM claimed that the meaning of spouse in the 1977 Act applied to a homosexual couple and that interpreting the 1977 Act to apply only to heterosexual couples was discriminatory within the meaning of the Human Rights Act 1998, Schedule 1, Part I, Articles 8 and 14.

Decision/Outcome:

Para 2(2) of the RA 1977 had to be construed as including persons in a same-sex relationship. The words ‘as his or her wife of husband’ were to be read to mean ‘as if they were his or her wife or husband’ in order to comply with Article 8, and protect the degree of security of tenure enjoyed by a person. Under Article 14 ECHR, discrimination because of sexual orientation was impermissible. It was the positive obligation of the state to promote the values protected by Article 8 affecting the home by bringing national legislation within its ambit.

Related case law and development:

Distinguished: R. v Suski (Dariusz Tomasz) [2016] EWCA Crim 24 – not the same facts

Applied: Z (A Child) (Surrogate Father: Parental Order) [2015] EWFC 73; Northumberland and Durham Property Trust Ltd v Ouaha [2014] EWCA Civ 571; Rowstock Ltd v Jessemey [2014] EWCA Civ 185, amongst others.

Followed: Warren v Care Fertility (Northampton) Ltd [2014] EWHC 602 (Fam); Revenue and Customs Commissioners v Bosher [2013] UKUT 579 (TCC), amongst others.

Considered: Amicus Horizon Ltd v Mabbott’s Estate [2012] EWCA Civ 895; Ministry of Defence v Wallis [2011] 1 CMLR 40, amongst others.

Mentioned by: Lock v British Gas Trading Ltd [2016] IRLR 316; Steinfeld v Secretary of State for Education [2016] EWHC 128 (Admin), amongst others.