26 June, 2008
Landlords, both public and private, have been waiting with baited breath for the House of Lords to rule on the problematic case of Lewisham LBC v Malcolm. For those readers who can't wait to hear the good news, Lewisham's appeal succeeded!
Mr Malcolm was a secure tenant of the landlord. Just before he was due to complete the right to buy process concerning his property, he unlawfully sub-let the whole of it and therefore ceased to be a secure tenant. According to Mr Malcolm, this was done because he suffered from a schizophrenic disorder, of which Lewisham had no knowledge, and which affected his ability to make rational decisions.
Lewisham immediately became entitled to serve a Notice to Quit giving 4 weeks' notice. Upon expiry of the notice, Mr Malcolm became a trespasser and had no right to occupy his property. Lewisham sought possession, to which there was no legal defence. However, Mr Malcolm argued that his eviction was unlawful because it was discriminatory under the Disability Discrimination Act 1995.
Section 22(3)(c) of the DDA provides that it is unlawful to discriminate against a disabled person by "evicting the disabled person or subjecting him to any other detriment."
Under the DDA, a landlord discriminates where "for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply and he cannot show that the treatment is justified".
The treatment in question is justified if it "is necessary in order not to endanger the health and safety of any other person and it is reasonable, in all the circumstances of the case, for [the landlord] to hold that opinion".
Previous caselaw has proved problematic because it has held that if the immediate reason for eviction (such as rent arrears or anti social behaviour) was caused by an underlying disability such as a mental health illness, then the connection was made and this counted as discrimination, even when the landlord had no knowledge of the disability. This meant it could only be justified where there was a danger to the health of another person. This has not been a problem in obvious health and safety cases (e.g. servicing gas appliances) or where anti social behaviour is concerned, but gave cause for concern in cases involving merely rent recovery.
The Court of Appeal in the Lewisham v Malcolm case went further and held that based on the precise wording of the DDA this created an entirely new defence to any kind of possession proceedings where disability was an underlying cause. The effect of this would be that even where the landlord had served a notice to quit, or where the landlord was relying on Ground 8 (rent arrears) or Section 21 (termination of shorthold tenancy), if the reason for possession was in any way shape or form related to the tenant's disability, then the whole possession claim would be struck out.
The House of Lords has looked beyond the strict wording of the DDA and interpreted it in the light of what it was intended to do. The DDA was designed to prevent victimisation, not to provide blanket immunity from litigation for disabled people. The Law Lords made the following key findings:
What does this mean in practice for landlords?
The decision is a welcome movement back in the direction of common sense in a long period when social landlords have been battered by rulings in favour of tenants and defendants in both civil and criminal litigation. The crumb of comfort that tenants' lawyers can take from this ruling is that there will be a valid defence to any claim for possession where the tenant can show that their disability was an operating or motivating factor in the decision to evict and that they have been treated less favourably than other tenants in the same situation.
The ruling has also clarified how landlords can prevent disability discrimination within their fiscal and housing management procedures where health and safety is not an issue, and all parties can look forward to a fairer and less adversarial approach to what is a genuine concern for social landlords and tenants alike.