The European Commission of Human Rights sitting in private
on 14 May 1986 the following members being present:
Present: MM. C.A. NØRGAARD, President
J.A. FROWEIN
E. BUSUTTIL
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (art. 25);
Having regard to the application introduced on 22 August 1985 by Mary
Cunningham SIMPSON against the United Kingdom and registered on
26 August 1985 under file N° 11716/85;
Having regard to the report provided for in Rule 40 of the Rules of
Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a United Kingdom citizen, born in 1947. She is
unemployed and gives her address as care of her solicitor,
Mr. R. H. Sedler initially of Messrs Coates & Company in Leeds and
now of Messrs. Ralph C. Yablon in Bradford.
The facts of this application, as they have been submitted by the
applicant, may be summarised as follows:
In about September 1981 the applicant commenced co-habitation at a
house belonging to the Borough of Harrogate with a woman,
Mrs. R. whom she had known since 1972. Mrs. R. was a "secure
tenant" within the meaning of the Housing Act 1980 from the Harrogate
Borough Council.
The applicant and Mrs. R. ran a joint household, sharing all expenses.
They slept together in the same bed and had a lesbian relationship.
The applicant dressed as a woman and Mrs. R. dressed as a man. It was
generally known and accepted in the neighbourhood that they lived
together in a lesbian relationship as man and wife and the applicant's
representative has submitted a letter dated 6 March 1984 from the
applicant's general medical practitioner stating that "for three years
[Mrs. R] and [the applicant] have lived together in a lesbian
relationship as 'man and wife'. This has been well known and accepted
in the area. [The applicant] would be grateful of any help towards
her present housing situation."
On 8 February 1984 Mrs. R. died and the Harrogate Borough Council
commenced possession proceedings against the applicant. Those
proceedings were successful in the Harrogate County Court, where a
suspended possession order was granted in the Council's favour on
20 July 1984.
The applicant appealed to the Court of Appeal requesting that the
possession order be set aside, that a declaration be made that the
tenancy should rest in the applicant by virtue of Section 30 of the
Housing Act 1980 and asking for costs.
Section 30 of the Housing Act 1980 provides as follows:
"30.-(1) Where a secure tenancy is a periodic tenancy and, on the
death of the tenant, there is a person qualified to succeed him, the
tenancy vests by virtue of this section in that person or, if there is
more than one such person, in the one who is to be preferred in
accordance with subsection (3) below, unless the tenant was a
successor.
(2) A person is qualified to succeed the tenant under a secure tenancy
if he occupied the dwelling-house as his only principal home at the
time of the tenant's death and either -
(a) he is the tenant's spouse; or
(b) he is another member of the tenant's family and has resided with
the tenant throughout the period of twelve months ending with the
tenant's death.
(3) Where there is more than one person qualified to succeed the
tenant -
(a) the tenant's spouse is to be preferred to another member of the
tenant's family; and
(b) of two or more other members of the tenant's family such of them
is to be preferred as may be agreed between them or as may, where
there is no such agreement, be selected by the landlord."
Section 50 (3) of the Housing Act 1980 defines "a member of another's
family" for the purposes of the application as: "his spouse, parent,
grandparent, child, grandchild, brother, sister, uncle, aunt, nephew
or niece; treating -
(a) any relationship by marriage as a relationship by blood, any
relationship of the half blood as a relationship of the whole blood
and the stepchild of any person as his child; and
(b) an illegitimate person as the legitimate child of his mother and
reputed father;
or if they live together as husband and wife".
The Court of Appeal gave judgment on 11 December 1984 against the
applicant.
In his judgment, Lord Justice Watkins accepted that the public opinion
of men or women living together had changed, but agreed with Counsel
for the Council 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 ...". Mr. Justice Ewbank agreed
that "living together as husband and wife" did not include homosexual
relationships. He held that "the essential characteristic of living
together as husband and wife, in my judgment, is that they should be a
man and a woman and that they should be living together in the same
house".
The applicant's request for leave to appeal to the House of Lords was
refused, and a petition to the House of Lords for leave to appeal was
refused by the Appeal Committee on 28 February 1985.
COMPLAINTS
The applicant complains that respect for her private and family life
has been denied, and that she has been evicted from her home for no
other reason than that she was of the wrong sex to be able to claim
under domestic law to succeed to the tenancy of her home. She further
claims that the eviction was not necessary on any ground enumerated
within Article 8 para. 2.
She further claims that she has been discriminated against in relation
to her rights under Article 8 of the Convention. She also
invokes Article 1 of Protocol No. 1 to the Convention and
Article 13 of the Convention.
THE LAW
1. The applicant allegs a violation of Article 8 (Art. 8) of
the Convention in several respects.
Article 8 (Art. 8) provides as follows:
"1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
2. The applicant complains that respect for her family life has
been denied without justification under Article 8 para. 2 (Art. 8-2)
of the Convention.
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 (Art. 8) of the Convention (No. 9369/81,
Dec. 3.5.83, D.R. 32 p. 220). The present applicant's relationship
with her now deceased partner accordingly also falls outside the scope
of Article 8 (Art. 8) insofar as it protects the right to respect for
family life.
It follows that this part of the application is incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2).
3. As regards private life, the Commission accepted in
Application No. 9369/81 (loc. cit.) that the applicant's relationship
in that case did constitute a matter affecting their private life. In
the present case, however, the applicant has lived alone since the
death of her partner and the applicant's own private life in respect
of that partner has not been interfered with. Any interference which
there may have been with the applicant's private life falls to be
considered in the context of her home, which is dealt with in the
following paragaraph.
It follows that the Commission is not required to consider this aspect
of the application.
4. The applicant alleges that she has been evicted from her home
for no other reason than that she was of the wrong sex to have a claim
under domestic law to succeed to the tenancy of her home.
The Commission notes that the applicant was occupying the house, of
which her partner had been the tenant, without any legal title
whatsoever. Contractual relations were established between the local
authority and the deceased partner and that contractual agreement may
or may not have permitted long-term visitors. The fact remains,
however, that on the death of the partner, under the ordinary law, the
applicant was no longer entitled to remain in the house, and the local
authority was entitled to possession so that the house could no longer
be regarded as "home" for the applicant within the meaning of
Article 8 (Art. 8).
Further, even if the applicant's right to respect for her home, as
guaranteed by Article 8 (Art. 8), could be regarded as having been
interfered with by order of the county court for possession against
her, the Commission considers that such interference was clearly in
accordance with the law and was also necessary for the protection of
the contractual rights of the landlord to have the property back at
the end of the tenancy.
It follows that this part of the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
5. The applicant alleges a violation of Article 1 of
Protocol No. 1 (P1-1) to the Convention which provides, as far as
relevant, as follows:
"Every ... person is entitled to the peaceful enjoyment of his
possessions. ... "
The Commission has already found that there was no contractual nexus
between the applicant and the local authority. The applicant has not
shown that her possessions were in any way interfered with, and the
fact that she had been living in the house for some time without legal
title cannot constitute a possession within the meaning of Article 1
of Protocol No. 1 (P1-1).
It follows that this part of the application is incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2).
6. The applicant alleges a violation of Article 14 of the
Convention (Art. 14) both in relation to her rights under the
Housing Act 1980 and in relation to her rights under Article 8 of the
Convention (Art. 8).
Article 14 (art. 14)of the Convention, so far as relevant, provides
as follows:-
"The enjoyment of the rights and freedoms set forth in this Convention
shall be secured without discrimination on any grounds, such as sex
... "
7. The Commission recalls that a difference in treatment in the
enjoyment of the rights and freedoms set forth in the Convention is
not to be regarded as discrimination for the purposes of Article 14
(Art. 14) if that difference has objective and reasonable
justification provided that the means employed are reasonably
proportional to the aim sought to be realised.
In the present case, the Commission has found that the applicant's
right in this case to private life is not applicable under Article 8
(Art. 8). The Commission is therefore only required to consider
Article 14 (Art. 14) in connection with Article 8 (Art. 8) so far as
that Article relates to "the right to respect for ... home".
The Commission accepts that the treatment accorded to the applicant
was different from the treatment she would have received if the
partners had been of different sexes.
The Commission finds that the aim of the legislation in question was
to protect the family, a goal similar to the protection of the right
to respect for family life guaranteed by Article 8 (Art. 8) of the
Convention. The aim itself is clearly legitimate. The question remains,
however, of whether it was justified to protect families but not to
give similar protection to other stable relationships. The Commission
considers that the family (to which the relationship of heterosexual
unmarried couples living together as husband and wife can be
assimilated) merits special protection in society and it see no reason
why a High Contracting Party should not afford particular assistance
to families. The Commission therefore accepts that the difference in
treatment between the applicant and somebody in the same position
whose partner had been of the opposite sex can be objectively and
reasonably justified.
As to proportionality, the Commission notes that the concept requires
that the application of a measure must be in reasonable relation to
its aim. In a case such as the present one, however, the complaint is
that the relevant provisions of the Housing Act 1980 did not apply to
the application, because they gave a benefit to the claims of persons
("family") only. The question of proportionality between the means
employed as against the applicant and the aim pursued cannot,
therefore, arise.
The Commission concludes that the applicant has not suffered
discrimination contrary to Article 14 (Art. 14). Accordingly, this
aspect of the application is manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2).
8. The applicant invokes Article 13 of the Convention (Art. 13)
in connection with her previous allegations. The Commission has found
that the Housing Act 1980, including its effects in the applicant's
case, is compatible with the substantive provisions of the Convention.
In such a situation, the requirements of Article 13 (Art. 13) will be
satisfied if there exists domestic machinery whereby the individual
can secure compliance with the relevant laws (see, e.g., Eur. Court
H.R., James case, judgment of 21.2.86, para. 86 and references there).
It is apparent that effective remedies in this sense were available to
the applicant insofar as she appealed to the Court of Appeal and House
of Lords.
This part of the application is accordingly manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)