Lewisham LBC v Malcolm - Common sense prevails in important Disability Discrimination Case

Article

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:

  1. When considering whether a tenant has been treated "less favourably", the Court should only compare their treatment to a non-disabled person who did exactly the same thing or is in exactly the same circumstances (disapproving Clark v Novacold). This means that if a non-disabled person in the same situation would also have been evicted, then there is no discrimination.

  2. The tenant must as a bare minimum show that the landlord knew or ought to have known that the tenant was disabled (i.e. knew that the tenant had symptoms of their disability).

  3. The tenant must also show that their disability was an "operating" or "motivating" part of the landlord's decision to evict, or was not too "remote". The Law Lords accepted that each case will turn on its facts.

What does this mean in practice for landlords?

  • When commencing possession proceedings, starting with the service of any required notice, the landlord's employee should consider whether the landlord knows of or suspects the existence of any disability and also whether this has contributed to or played a part in deciding to evict.

  • This review process should be documented and the written note kept on file in case it is needed later.

  • Landlord's employees should be particularly alert to the kinds of behaviour which can indicate a mental health problem and if they are not confident enough in this area then training should be provided.

  • If the landlord's employee is worried that their decision process is being clouded by the existence of a known or suspected disability, they should ask themselves what they would do if the facts were exactly the same but the tenant were not disabled, and document this review process.

  • Landlords should also bear in mind that they are required under the 2005 amendments to the DDA to make reasonable adjustments in relation to premises to cater for disability. This includes in some circumstances management of policies and making exceptions in such a way as to prevent unintentional discrimination, including where tenants' disabilities lead to rent arrears or other failures to comply with the terms of their tenancy. Landlords should therefore keep such policies under review to prevent such unintentional discrimination where it is reasonable to do so.

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.

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