Nutting v Southern Housing Group Ltd

This is an appeal from the decision of Mr Recorder Wilmot-Smith QC given on the 16^th August of this year whereby on the claimant Southern Housing Group Ltd’s (“SHG”) claim for possession of Flat 6, 97a St James Street Brighton (“flat 6”) against the defendant Mark Nutting (“Mr Nutting”), he concluded that Mr Nutting was not entitled to succeed to an assured tenancy of flat 6 pursuant to section 17 of the Housing Act 1988 and that in consequence the claim succeeded. The Recorder gave permission to appeal.

Section 17 provides, so far as material, as follows:-

“17(1) In any case where

(a)

the sole tenant under an assured periodic tenancy dies, and

(b)

immediately before the death, the tenant’s spouse was occupying the dwelling-house as his or her only or principal home, and

(c)

the tenant was not himself a successor, as defined in subsection (2) or subsection (3) below, [not applicable]

then, on the death, the tenancy vests by virtue of this section in the spouse (and, accordingly, does not devolve under the tenant's will or intestacy)…

(2)…

(3)…

(4)

For the purposes of this section, a person who was living with the tenant as his or her wife or husband shall be treated as the tenant’s spouse…. ”

For a period of just more than two years before the latter’s death Mr Nutting was party to a homosexual relationship with a Mr Roberts who was the tenant under an assured tenancy of flat 6 from SHG. Mr Nutting appeals from Mr Wilmot-Smith’s order.

Between paragraphs 13 and 33 of his judgment the Recorder sets out the history of the relationship between Mr Nutting and Mr Roberts from its inception in February 2001 until the death of Mr Roberts on the 11^th March 2003. For the sake of brevity I will not repeat that history here but to make this judgment coherent I will give a brief summary.

On the 8^th July 1996 Mr Roberts took an assured tenancy from SHG of flat 2 25 Gladstone Place Brighton (“flat 2”). In February 2001 Mr Roberts met Mr Nutting and almost immediately formed a relationship with him as a result of which Mr Nutting moved in to flat 2. Before doing so Mr Nutting had lived in hostels for the homeless and he never subsequently found for himself somewhere to live apart from flat 2 and flat 6. At paragraph 14 of his judgment the Recorder describes the relationship as “volatile.Both men drank, Mr Roberts drank particularly heavily and when drunk was argumentative and aggressive. This tempestuous relationship was shared with their neighbours who had to put up with a great deal of noise and nuisance emanating form Mr Roberts flat. They rowed noisily they fought and stomped around the flat so much that the noise of their feet was audible in the basement flat…”

On the 11^th March Mr Roberts consulted solicitors on the basis that he had ended his relationship with Mr Nutting and wished to be rid of him. He was advised to take proceedings for a “non molestation order”. Mr Roberts affidavit in the proceedings dated the 14^th May 2002 records that the relationship with Mr Nutting had ended some 12 months previously but Mr Nutting had failed to leave. Mr Nutting did not defend the proceedings with the result that an order was made on the 28^th May 2002, in the Brighton County Court, ordering him to leave flat 2 and cease to offer violence to Mr Roberts. Mr Nutting disobeyed the order and was committed to prison for breach of it. When Mr Nutting emerged from prison he returned to live with Mr Roberts at flat 2. On the 27^th January 2003 Mr Roberts applied for a tenancy transfer to flat 6 also the property of SHG. In the course of his negotiations with SHG he indicated it was his intention to move into flat 6 alone. Mr Roberts took an assured tenancy and moved into flat 6 on the 17^th February 2003. He died in hospital on the 11^th March 2003 from the effects of alcoholism. The Recorder found that Mr Nutting was living at flat 6 at the time of Mr Roberts death and had been living there before that date. Mr Nutting applied to succeed to the assured tenancy on the 22^nd July 2003.

The issue on the appeal is whether the Recorder was correct in coming to the conclusion that Mr Nutting was not Mr Roberts’ “spouse” for the purposes of section 17 (4) of the Housing Act 1988. Was he living with Mr Roberts in a relationship similar to marriage so as to be treated as Mr Roberts’ spouse?

In Ghaidan v Mendoza 2004 3 WLR p113 the House of Lords concluded that the provisions of paragraph 2 of schedule 1 of the Rent Act 1977, which deal with the succession right of spouses to Rent Act tenancies, must be construed, in the light of the coming into force of the Human Rights Act 1998, as applying to homosexual relationships which can be equated with the relationship of heterosexual marriage. It is accepted that the same principles must govern the construction of section 17 of the Housing Act 1988. It is also accepted that immediately before Mr Roberts’s death Mr Nutting was occupying flat 6 as his only or principal home within the meaning of section 17(1) (b) of the 1988 Act.

At paragraph 36 and 37 of his judgment the Recorder directs himself “as to what evidence is required to show that someone is living with another as if they were a spouse” as follows:-

“36

In my judgment the relationship, to come within the subsection, cannot have a single (or even a simple) definition. Human relationships are too complex and varied for that to be the case. There are, however, indicia. I have chosen to put them by questions, which must be answered in the affirmative, as follows:

(a)

Have the parties openly set up home together?

(b)

Is the relationship an emotional one of mutual lifetime commitment rather than simply one of convenience, friendship, companionship or the living together of lovers?

(c)

Is the relationship one which has been presented to the outside world openly and unequivocally so that society considers it to be of permanent intent – the words “till death us do part” being apposite?

(d)

Do the parties have a common life together, both domestically (in relation to the household) and externally (in relation to family and friends)?

37

The above indicia (which may overlap) must principally be objectively assessed by reference to what the outside world can see (albeit that the domestic aspect may not be viewable without visitors) and the indicia at (b) must also be assessed by reference to the viewpoint of the parties themselves, so far as that can be ascertained on evidence. In that regard the relationship of spouse does have some subjective element to it, but accompanying its subjectivity there must be express or implied communication of one party to the other by way of a demonstration of a lifetime emotional commitment. Whilst the length of time which the relationship has been in existence is irrelevant to the above indicia, it may sometimes corroborate them or even, in appropriate cases, be of sufficient length to satisfy a court that they are satisfied that the relationship of spouse exists.”

It is counsel for Mr Nutting’s submission that the Recorder’s tests imply too narrow a definition of what constitutes a spousal relationship between two persons in the light of society’s development over recent years of which the court should take account. In the result the Recorder found that with regard to the relationship between Mr Roberts and Mr Nutting, questions (a) to (c) could not be answered yes whereas question (d) could not be so answered. It seems to me that question (b) is the fundamental question and that question (c) adds nothing to it save the requirement that a relationship meeting the requirements of (c) should be openly and unequivocally demonstrated to the outside world.

Between paragraph 47 and 51 of his judgment the Recorder makes the findings upon which his decision is based in the following terms:-

“47

… I find that it [the relationship between Mr Roberts and Mr Nutting] was a co-dependant relationship and Mr Nutting did believe that he loved Mr Roberts (albeit that the shelter of Mr Roberts flat was preferable to a hostel for the homeless, which was the alternative) and Mr Roberts lacked companionship… and lacked the will to resist Mr Nutting’s determination to spend time with him. Each abused the other. Each cared for the other so far as their alcoholic lifestyle allowed….

48

But I do not find that the relationship reached the point where they were committed to the other “till death us do part” they were in a repeat cycle of mutual abuse…

49

I do not find any evidence to the effect that the parties have committed themselves to the other for the rest of their lives. Their mutual companionship and partnership did not go that far.

50

Whilst the parties lived together, they did not “set up home together”. Mr Nutting moved in with Mr Roberts at his first flat and moved in again when Mr Roberts moved to the new flat. In my judgment Mr Roberts intention was, when moving, was to separate from Mr Nutting… that intention was unable to resist Mr Nutting’s wish to live with Mr Roberts, but that does not turn Mr Nutting moving in with Mr Roberts into a setting up of home together…

51

…their life was violent, dysfunctional and socially impoverished but had sufficient common strands to satisfy indicia (d).”

It seems clear from these quoted passages from the Recorder’s judgment that he based his decision primarily on the apparent lack of permanence in the relationship between Mr Roberts and Mr Nutting. It is counsel for Mr Nutting’s submission that this emphasis on the requirement of indications of permanence in the relationship is too restrictive and inconsistent with authority, in particular, with the dissenting speech of Lord Millett in the Ghaidan case at paragraph 92 where he says:-

“92

The expression “living together as man and wife” or “as husband and wife” is in general use and well understood. It does not mean living together as lovers whether of the same or the opposite sex. It connotes persons who have openly set up home together as man and wife. While other factors may be significant where the question arises between the parties themselves, in a context such as the present it must depend largely if not exclusively on outward appearances. It cannot depend on the relationship being a happy, or long lasting, or stable one. This would be contrary to the Parliament's long-standing policy: the survivor must succeed by virtue of his or her status. He or she is to be treated as having been the spouse of the original tenant because that is what, to all intents and purposes and to all outward appearances, the claimant was. This is, of course, not to say that they must hold themselves out as husband and wife: couples who live together as husband and wife rarely do so. It means only that they must appear to the outside world as if they were husband and wife.”

Then at paragraph 94 having drawn attention to the successive extensions of the right to succeed ultimately in 1988 to a person who had lived with the tenant as his or her spouse though without actually contracting a legally binding marriage he continues:-

“The common feature of all these relationships is that they are open relationships between persons of the opposite sex. Persons who set up home together may be husband and wife or live together as husband and wife; they may be lovers; or brother and sister; or friends; or fellow students; or share a common economic interest; or one may be economically dependent on the other. But Parliament did not extend the right to persons who set up home together; but only to those who did so as husband and wife.”

It must be borne in mind that there was no question in the Ghaidan case as to whether the relevant homosexual relationship was stable and monogamous (see paragraph 2 from the speech of Lord Nicholls). The issue was whether the fact that the relationship was homosexual took it outside paragraph 2(2) of the 1977 Act which provides “(2) for the purpose of this paragraph, a person who is living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant…” or rather whether paragraph 2(2) is now, as a result of the Human Rights Act, required to be construed as comprehending homosexual relationships. Strictly, therefore, the passage which I have quoted from Lord Millett’s speech was not only part of a dissent but was also obiter to his conclusion. It can also be contrasted with the emphasis of Lord Rodger at paragraph 128 on the test being applied to “long term homosexual partnerships” and to the passages in the speech of Baroness Hale at paragraphs 139 and 140 where in relation to the phrase “were living together as husband and wife” she says:-

“Working out whether a particular couple are or were in such a relationship is not always easy…what matters most is the essential quality of the relationship, its marriage-like intimacy, stability, and social and financial inter-dependence.”

And at paragraph 140 she highlights the fact that homosexual couples frequently go through ceremonies of commitment in order to present themselves to the world as if they were married. And then at paragraph 142 she says:-

“142

Some people, whether heterosexual or homosexual, may be satisfied with casual or transient relationships. But most human beings eventually want more than that. They want love. And with love they often want not only the warmth but also the sense of belonging to one another which is the essence of being a couple. And many couples also come to want the stability and permanence which go with sharing a home and a life together, with or without the children…

143

It follows that a homosexual couple whose relationship is marriage-like in the same ways that an unmarried heterosexual couple's relationship is marriage-like are indeed in an analogous situation.”

In Helby v Rafferty [1979] 1WLR 13 the Court of Appeal were dealing with a claim to succeed to a Rent Act tenancy under the Rent Act 1977 by the survivor of an unmarried heterosexual union. Under the legislation as it then stood the question was whether the survivor constituted a member of the original tenants family at the time of and for the period of 6 months immediately before his death. It was held that a permanent and stable union between a man and a woman over a long period could constitute the family relationship necessary to satisfy what was then paragraph 3 of schedule 1 to the 1977 Act. In the speech of Lord Justice Roskill at page 23 of the report the following passage appears:-

“but, be that as it may, it seems to me that this court has, by a majority, decided that a woman who has had a sufficiently permanent relationship with a man over a period of years, but has not been married to him, may, nonetheless, have acquired the status of a member of that man’s family. Accordingly, logically it can be argued – and one sees the force of the argument- that if in such circumstances that applies so as to enable a woman to become a statutory tenant by succession of a man, so in similar circumstances it should equally apply to enable a man to become a statutory tenant by succession of a woman…that being so, it seems to me it must be a question of fact and degree in each case - whether a sufficient state of permanence has been reached so that the surviving party can fairly be said in all the circumstances to be a member of the original tenant's family…the case was obviously fully and carefully argued before him [the judge] and he, for the reasons which appear in his judgment, expressed the view that the necessary degree of permanence in this particular relationship had not been shown; and he accordingly held that the defendant could not be and was not a statutory tenant by succession.”

My attention was also drawn to the decision of the Court of Appeal in Chios Property Investment Co Ltd v Lopez 20 HLR p 120 another case of disputed succession to a Rent Act tenancy under the 1977 Act. At page 122 of the report Sir George Waller discusses the requirements of a relationship with the deceased tenant which the court can categorise as making the claimant to succeed a member of the tenants family. He says this:-

“ It was also argued that the absence of children and the shortness of the relationship should have resulted in a different conclusion. Counsel cited the very much longer periods in the reported cases referred to above. In my judgment, there can be no rule about length. Of course, the longer the relationship, the easier it will be to infer permanence, but there can be no rule about length. For a relationship of only two years to be regarded as permanent must be rare, but the judge for reasons which he gave found this was permanent and I see no reason for disagreeing. The appellants also submitted that there were periods of being apart, e.g. when the deceased was in Egypt and at holiday time, but I do not think that these made any difference.  

 Finally, it was submitted that the fact that she still used her maiden name indicated that they did not constitute a family. This I found the most persuasive of all the appellants’ arguments, but at the end of the day the judge had to make a finding of fact bearing in mind the authorities I have quoted. He heard the evidence, he applied the right test and he came to the conclusion that this was a permanent relationship, so recognised by others, and that Miss Lopez was “a member of the tenant’s family”. I can see no reason for interfering with this conclusion…”

I return to the Recorder’s four tests. Having regard to the authorities it does not seem to me, with respect, that the fact that question (a) can be answered in the affirmative is indicative of a “spousal” relationship. That answer could have been given in relation to students sharing lodgings. The Recorder himself did not treat an affirmative answer to question (d) as being so indicative. I agree with him. Without a lifetime commitment at least at some point in the relationship there is no sufficient similarity to marriage. There are many ways in which a marriage relationship can be described but it seems to me that the test prescribed by the Recorder at paragraph (b) subject to the qualification in paragraph (c), that the relationship must be openly and unequivocally displayed to the outside world, is an entirely adequate test and one which is consistent with the authorities. The Recorder concluded that Mr Nutting had failed to demonstrate that his relationship with Mr Roberts displayed a sufficient commitment to permanence to meet the test. In my judgment on the findings of fact which the Recorder made he was entitled to arrive at that conclusion. It follows that I would dismiss this appeal.