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The appellant applied to be granted a joint tenancy for their government flat, to provide her same sex partner with long term security in the event of her death. The Gibraltar Housing Allocation Committee refused the application on grounds that joint tenancies were only usually approved if the application was made by “a married partner, parent, adult child or common law partner of the tenant” – and then only to common law partners where there was at least one minor child living with them.  The Privy Council unanimously held that there was discriminatory treatment which could not be justified. The difference in treatment was not directly on account of the appellant’s sexual orientation, because there are other unmarried couples who would also be denied a joint tenancy. However, in this case, the criterion is one that this couple, unlike other unmarried couples, would never be able to meet. They will never be able to get married or similar (there is no civil partnership in Gibraltar) or have children in common, and this is a form of indirect discrimination because of their sexual orientation. The discriminatory effect of the policy could not be justified as it was not rationally related to a legitimate aim, nor was it in accordance with the law because it was inaccessible – it was not recorded in any codified form.

For judgment, please download: [2009] UKPC 52
For UKPC press summary, please download: UKPC Press Summary

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