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They do things differently over there

By J

Rodriguez v (1) Minister of Housing (2) Housing Allocation Committee [2009] UKPC 52 is perhaps most remarkable for needing to get as far as the Privy Council before a sensible decision was made.

The second respondent was a statutory body responsible for the allocation of social housing in Gibraltar. It had an unwritten and unpublished policy that it would only grant joint tenancies to (a) married couples or (b) unmarried couples who lived together with a child of which they were both the biological parents. If you can see problems with this policy then you’re not alone.

The appellant was a tenant of the second respondent. She had been in a same-sex relationship for 21 years and wanted to change her tenancy into a joint tenancy with her partner. She applied to the second respondent to this end and, given their policy, was refused.

She issued proceedings in the Supreme Court of Gibraltar arguing inter alia that the policy amounted to unlawful discrimination. Her claim was dismissed in the Supreme Court of Gibraltar and in the Court of Appeal of Gibraltar on the basis that there was no discrimination against homosexuals as it applied to all unmarried persons who didn’t have children.

The Privy Council was having none of this. In a rather robust judgment they pointed out that, in addition to the considerable public law problems that flowed from having an unwritten and unpublished policy, homosexual couples could never come within the scope of this policy as they couldn’t marry and couldn’t both be the biological parents of a child.It was impossible to justify this discrimination as there was no suggestion that it was rationally connected to any legitimate purpose.

So there. Entirely right.

Posted in: Succession
J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.


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