In this case, Liz Atkins looks at the decision in Mendoza in so far as it affects same sex couples and the right to succession.
In the case of Antonio Mendoza -v-Ahmad Raja Ghaidan (2002), the Court of Appeal considered the House of Lords ruling in Fitzpatrick and Sterling Housing Association Ltd (1999) and held that the House of Lords interpretation of Schedule 1, paragraph 2 of the Rent Act 1977 violates the provisions of Article 14, the right not to be discriminated against, of the European Convention on Human Rights.
This case involved a same sex co-habitee (C) of a deceased tenant (T). He appealed a decision that meant he could only be awarded an assured tenancy, and not a statutory tenancy, under the succession provisions of the Rent Act 1977 and which was in accordance with the decision of the House of Lords in Fitzpatrick. T had lived at the premises since 1983 and C had moved into the premises with him as they had lived together since 1972.
There was overwhelming evidence that C and T were in a loving and monogamous relationship. The decision appealed was that, following Fitzpatrick, a surviving same sex partner could qualify as a member of the tenant’s family under Schedule 1, paragraph 3 of the Act, but could not qualify as a spouse or a person living with the original tenant for the purposes of Schedule 1, paragraph 2 of the Act.
The landlord submitted that:-
- The case did not fall within the provisions of the European Convention of Human Rights.
- The difference in treatment between C and the hypothetical comparator was justified as it pursued a legitimate aim and was proportionate to that aim. Alternatively, the Landlord argued that the different treatment of same sex partners was either non discriminatory or discriminatory but justifiable.
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