4Lw022 Legal System And Principles: Assessment Answers

Facts:

Richard and Vanessa have been partners for 40 years. Prior to meeting Richard, Vanessa had a flat in her name and Richard moved into this flat shortly after they got together; they have lived in the flat ever since.

Ten years ago (2008), Richard revealed to Vanessa that he was transsexual and wanted to transition to become a woman. Vanessa accepted this and they continued to live together as partners. Richard is now Michelle.

Sadly, Vanessa died in August 2018 and Pilkington Borough Housing Ltd have stated that Michelle cannot take over Vanessa’s tenancy because she is neither Vanessa’s spouse or part of her family under Schedule 1 Rent Act 1977, due to her self-identifying as a woman.

You are a trainee solicitor working for a firm of Solicitors in Birmingham. Michelle has asked your supervising solicitor to provide advice on whether she is legally entitled to take over Vanessa’s tenancy.  

Directions:

1. Analyse the statute, the definitions, the case law and the Human Rights perspectives provided in this assessment brief and answer the corresponding questions below;
   
   
2. As part of your training on legal research, your supervisor has then asked that by using this information you produce a written report of no more than 1200 words identifying, explaining and applying the law relevant to Michelle’s case which will assist your supervisor in advising the client on her legal position (you will submit this formatively for feedback in early November) and,
   
   
3. Give a 5 minute oral presentation of your report to your supervisor and be prepared to answer a series of questions on your findings.

Findings 

The Schedule 1 Para 1 of Rent act 1977 states that the living spouse of the tenant living in the same house at the time of demise of a partner is going to be considered as the statutory tenant at the death of the spouse. In this regard Michelle has a right to the property that has been occupied by Vanessa which is under Pilkington Borough Council.

Schedule 1 Para 2 (2) of the Rent act 1977 suggest that the person who is living with the tenant as husband or wife is going to be considered as partner, in case they are not married they are going to be considered as civil partner in that case as well the partner is going to have the right to succeed the original tenant.

Gender Recognition act 2004 gives the right to an adult person to legally live in the gender that they chose to acquire instead of the one assigned to them at birth. This act gives legal recognition to a person in choosing their gender which is approved by a gender recognition panel. There are certain criteria that have to be fulfilled to get the legal recognition of another gender. This involves having gender dysphoria, living for a period of 2 years as a member of another gender and having the intention to live as a member of the other gender till death. Michelle is going to be recognised as a female gendered person because of the fact that she has decided to live as a female and has been living as a woman for 10 years and till now shows the intention of living as a woman for the rest of her life. The case of College of Nursing v. D.H.S.S. [1981] A.C. 800, 822, Lord Slynn one of the members of the house of lords stated that in case of social issues it is of importance to make sure that the judges do not use their views rather make the judgement by ensuring that the importance of change is recognised on the criteria of the ‘intention of the parliament’. So in this particular case the meaning of the word ‘Family’ has been given a more expanded explanation.

The term ‘spouse’ has been defined as a husband or a wife of a person as per the oxford English dictionary. The family has been defined by the Oxford English dictionary as a unit two people along with their children. So it can be said that the traditional definition of the terms like family and spouse are limited and doesn’t define the particular case of Vanessa and Michelle. They are both same gendered and also there is no mention of them having children so it can be assumed that they didn’t had any in such circumstances they cannot be defined as a family as per the definition in the dictionary.

In the judgement that was made by Lord Slynn in Fitzpatrick v Sterling Housing Association [2001] the term ‘spouse’ has been discussed by him and stated that the term spouse need to be changed in this context because of the fact that the normal definition of spouse cannot to be extended to couple mentioned in this case because they are unable to produce children.

In the Lord Slynn in Fitzpatrick v Sterling Housing Association [2001] case the judgement by Lord Nicholls stated that the family’s importance in case legislative succession is important because the chief definition of family in this case involves some people who are related by blood, marriage or adoption and is sharing a common dwelling and hence on the demise of one person it is of great importance for the rest of the family to be protected and hence should have the right to the dwelling that has been shared by them.

Considering the above judgement in the Fitzpatrick case by Lord Nicholls Michelle can be considered more likely to be family because there has been several definition of family. The presence of children in the terminology of being qualified as family has also been evaluated. But it has been concluded by Lord Nicholls that the non existence of children is not likely to doubt the existence of spouse. So the recognition of spouse has been done even when there are no children so as per this definition Michelle is going to be considered as a spouse to Vanessa however it has been concluded to say that spouse is going to be considered as family as well.

In Beliger v Belinger [2003] UKHL 21 judgement Lord Nicholls describe transsexual people as those who do not have any physical incongruence in terms of gender. However they are mentally alienated from their bodily gender and suffer from dysphoria and not giving medical attention in this regard can cause strong psychological discomfort.

Article 8 provides Michelle the opportunity to conform or enjoy her gender assigned at birth however it doesn’t force her to conform to it. It also assures Michelle that the government should not interfere with the personal life of people unless national security, public safety, economic well being of masses is hampered or disorder, crime, health issues, loss of moral is caused.

As per the case of Ghaidan v Godin-Mendoza [2004] UKHL judgement it can be said that the terminology of same sex couples as member of family rather than a spouse has some disadvantages which is seen in this particular case. The rent that is to be paid under this judgement is at par the market rent which is more than the fair rent that have been paid by the deceased member during his presence. The security of the tenant is also reduced in case of the acceptance of this clause. Thus the succession right of a heterosexual couples and a homosexual couple is different and can be considered as discriminatory.

The underlying social policy in this case is the fact that the couple who have shared the home and lives of each other together should be entitled to the above mentioned benefits.

The chances of cohabiting transsexual couples are also going to be considered with similar advantage because of the fact that there have been many cases that has accepted the standing regarding the rights of the transsexual people. At the same time there are also rulings that tend to recognise the right of the same gendered people. In this case both the legislation is likely to be implemented by the tribunal. So the doctrine of stare decisis will force the tribunal to accept the case of transsexual couples as well.

Conclusion 

In conclusion it can be said that Michelle has met the criteria of being a transsexual as she has been living as a women for a period of 10 years. At the same time she also fulfils the criteria of succession as she was the person who was living with Vanessa during her last days in the house as civil couples. So considering both the conditions it can be stated that Michelle is likely to be considered as a couple to Vanessa and is going to succeed her as a tenant in the housing.

Bibliography 

(Legislation.gov.uk, 2018) <https://www.legislation.gov.uk/ukpga/2004/7/pdfs/ukpga_20040007_en.pdf> accessed 30 October 2018

'Family | Definition Of Family In English By Oxford Dictionaries' (Oxford Dictionaries | English, 2018) <https://en.oxforddictionaries.com/definition/family> accessed 30 October 2018

'Gender Recognition Act 2004 - Explanatory Notes' (Legislation.gov.uk, 2018) <https://www.legislation.gov.uk/ukpga/2004/7/notes/division/2> accessed 30 October 2018

'House Of Lords - Bellinger (FC) (Appellant) V. Bellinger' (Publications.parliament.uk, 2018) <https://publications.parliament.uk/pa/ld200203/ldjudgmt/jd030410/bellin-1.htm> accessed 30 October 2018

'House Of Lords - Fitzpatrick (A. P.) V. Sterling Housing Association Ltd.' (Publications.parliament.uk, 2018) <https://publications.parliament.uk/pa/ld199899/ldjudgmt/jd991028/fitz03.htm> accessed 30 October 2018

'House Of Lords - Ghaidan (Appellant) V. Godin-Mendoza (FC) (Respondent)' (Publications.parliament.uk, 2018) <https://publications.parliament.uk/pa/ld200304/ldjudgmt/jd040621/gha-1.htm> accessed 30 October 2018

'Human Rights Act 1998' (Legislation.gov.uk, 2018) <https://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/7> accessed 30 October 2018

Magnus S, The Rent Act 1977 (1978)

Rayson JP Mallender, The Civil Partnership Act 2004 (Cambridge University Press 2005)

'Rent Act 1977' (Legislation.gov.uk, 2018) <https://www.legislation.gov.uk/ukpga/1977/42/schedule/1> accessed 30 October 2018