One test for establishing succession to a secure tenancy by a gay partner (not being a civil partner) has been established since Nutting v Southern Housing Group Ltd [2004] EWHC 2982 (Ch). This test is “that the relationship must be openly and unequivocally displayed to the outside world”.
In a possession claim heard at Central London County Court on, I think, 23 January 2014, Brent Council took what one might call a solipsistic approach to the meaning of ‘outside world’.
It is, so far at least, just a County Court case, but is very interesting in terms of approach and issues arising. The Defendant has requested that his name is not used in reports. While a court case is a matter of public record unless an anonymity order is made, given the circumstances of the case, we shall call him Mr P.
Mr P was the partner of the secure tenant of Brent LBC for some 5 years before the tenant died. Both Mr P and the tenant were gay and deaf, Mr P being profoundly deaf and unable to speak. Both lived at the property.
On the death of the tenant, Mr P asserted his succession to the tenancy. Brent refused to acknowledge the succession and brought a claim for possession. Mr P defended on the basis that he was the late tenant’s partner and had succeeded.
This is where it gets a little odd. Brent claimed that the late tenant and Mr P could not have been living together as partners because they had not been open with the Council about their sexuality and their relationship. Therefore they had not displayed their relationship to the outside world, pace Nutting
This interesting definition of ‘the outside world’ did not go down well with HHJ Lochrane. There were witnesses from the community Mr P and his partner spent most of their time in to the effect that they were open about their relationship. Being open and unequivocal about a relationship did not require being open with the entire world and certainly not with a landlord or local authority.
There was no need to enter into an ‘unedifying’ examination of Mr P’s private life. It was clear that Mr P and the late tenant had been open and there were external witness to that. They were not required to be ‘open’ with the landlord/council. Moreover, Brent had failed to show the required delicacy and sensitivity that was required, both in regard to the devastating effects of homelessness on a vulnerable individual and in failing to make proper inquiries. Instead, Brent had imposed inflexible criteria which were inappropriate for lesbian or gay relationships.
Brent sought permission to appeal (yes, really) and were refused. Will they try again?
For notes on the case, see Garden Court (John Beckley, Counsel) and Anthony Gold (Debra Wilson, Solicitor)
I agree that Brent ran an extraordinary argument and that if Nutting is applied the learned judge reached the correct conclusion .
I am very doubtful , however , that the Nutting test is correct and I am also of the view that the meaning of living together as husband and wife it provides is correct .
1 Many of the old authorities relied on from the Rent Act days are relics of different social conditions – witness Sir George Waller suggesting that a woman keeping her maiden name was evidence ( albeit rebutted ) that a man and woman were not living together as husband and wife
2 The Civil Partnership Act extended the same test but did not import any specific requirements about the relationship being open . For very good reason whilst thankfully there has been a significant shift in social attitudes to gay people discrimination remains all too widespread – so consider for example e.g an elderly gay couple from a time when their relationship was illegal who adopted a facade to the outside world they have not wished to change or a couple on an estate where homophobic abuse and harassment is known .
The test should be one of fact alone – (a) because the judicial accretions are from a time of different social mores that should be swept away as to what the proper meaning of living together as husband and wife should mean and (b) as far as same sex couples are concerned they are indirectly discriminatory
Why was this case heard at CLCC and not WCC? Brent local authority is, as far as I am aware, wholly under the jurisdiction of WCC.
I have seen some dubious denials of succession by various local authorities, but this has got to take the biscuit!
Because it was a trial in front of a Circuit Judge? Lots of London county courts transfer trials to CLCC, particularly if they are to be heard by a CJ. There is no such thing as a local authority area ‘being under the jurisdiction’ of a particular county court.
I obviously didn’t make myself clear – the London Borough of Brent is within the jurisdiction of WCC which is where the possession proceedings and first appeaks for properties in Brent are usually (I’d have said always until reading your post) heard, including the appeals to a CJ.
I have not heard of a case from WCC being transferred to CLCC before – hence asking if there was some special reason. Clearly, given your response, there was no special reason – as I said, there are CJs at WCC.
Again, no county court has specific jurisdiction over a borough. There are postcodes (overlapping) for claims that should be issued in that court, (except money only claims, which go to Salford and then Northampton). But cases can be transferred and often are. So, I get what you are saying, but you should really stop referring to ‘jurisdiction’.
I am correctly referring to jurisdiction (and I am only referring to possession claims, which is what this post is about) – whilst ‘the county court’ could be seen as one court, in London each one deals with specified areas, ergo they have a jurisdiction. CPR 55.3: the claim must be started in the county court in the district in which the land is situated.
Oxford dictionary definition of jurisdiction: the territory or sphere of activity over which the legal authority of a court or other institution extends.
In any case, the to-ing and fro-ing over my correct use of jurisdiction didn’t answer my question. I was wondering why it went to CLCC. I shall ask the claimant, as I am actually interested in the answer.
Thanks – I used to enjoy your blog…never commented before, and won’t again, given the reception, but next time you seek to correct someone, try ensuring you are correct.
Feel free to delete these comments – I won’t be back to read any of your further attempts at being, quite frankly, rude (as well as wrong).
LC. I am at a loss as to why you think this is a significant issue.
Jurisdiction of any county court is not limited to the district in which it is situated. That is why it makes no sense to use the word in the way that you are doing.
As to why the matter was in CLCC, this is also not a significant issue in any way shape or form. It is routine for Courts to transfer matters to other courts for hearing. It could well be something as simple as availability of a trial judge or listing slot.
I answered that question of yours in my first reply. So you did get an answer. I apologise for my snippy further response, but you simply ignored my first answer. Which was and remains right.
Presumably the case was issued in WCC and then – since (as I understand it) it was listed for 3 days – was transferred to CLCC (as often happens if the case is listed for more than 1 day). But this is a non-issue!
It was transferred from Willesden to Central London because a witness was given permission to give evidence by video link from her home becasue of her age and poor health. Central London failed to arrange for the video link to be set up and tested so she had to come the greater distance by taxi!
all i can think is ‘blimey, i’m happy not to have been instructed by the LA!’. i mean, how can you make properly arguable submissions on the point without the use of doublethink or being a fully paid-up member of the 17th century?
As to the jurisdiction issue – WCC is a feeder court – CLCC is the designated Civil Trial Centre for the London region – Look at CPR Practice Direction 26 para.10.2.
Sorry, I missed John Beckley’s post.