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Disability discrimination defences
For provisions relating to discrimination on the grounds of disability, religion or sexual orientation click here.
For the importance of the Disability Discrimination Act 1995 in anti-social behaviour cases click here.
Mandatory grounds
Comparison with non-disabled tenant doing same thing
London Borough of Lewisham v Malcolm
[2008] UKHL 43
Summary
A local authority landlord was entitled to possession, was not acting in a discriminatory way and was not in breach of the Disability Discrimination Act 1995 (DDA) by seeking to evict a tenant who had, due to his schizophrenia, unlawfully sublet his council accommodation. The reason for the decision to evict was the unlawful subletting and was not motivated by the tenant’s disability. This is an important case, in particular as it overturns a longstanding decision on who is the person with whom the comparison should be made when deciding whether or not there has been discrimination.
Facts
In February 2002, L let a flat to T under a secure tenancy. T subsequently sought to exercise his right to buy the flat. In order to finance the purchase, in June 2004, he unlawfully sublet the flat on an assured shorthold tenancy for six months. That automatically brought T’s secure tenancy to an end by virtue of s93(2) of the Housing Act 1985.
In July 2004, L learnt of the subletting, and, unaware of T's disability, served a notice to quit requiring possession by 9 August 2004; and thereafter issued possession proceedings. T defended on the basis that he suffered from a disability and the reason L sought possession was because of his disability.
At first instance, the county court judge determined that as the secure tenancy had come to an end and the notice to quit had expired, she had no discretion but to order possession. She further held that, even if wrong on that point, T’s disability was not substantial and had not caused him to sublet the property.
T appealed to the Court of Appeal. They overturned the judge’s decision. The notice to quit and possession action constituted unlawful discrimination under the DDA. L appealed to the House of Lords. The appeal was allowed.
Issues
There were four important issues in the case:If a landlord has an absolute right to possession at common law, can that be defeated by a discrimination defence?
What sort of link does there need to be between the disability and the action taken (the eviction) before there can be said to be discrimination?
Does the landlord need to know that he is discriminating in order for his action to be unlawful?
When deciding whether or not there has been discrimination against the tenant with whom does one make the comparison? Is it with another tenant, who is not disabled and who has sublet? Or, is it with tenants who have not sublet? Discrimination defence
The House held that if an eviction is discriminatory it will not be allowed even where the claim for possession would otherwise be unanswerable at common law. Parliament has enacted that certain discriminatory acts are unlawful. "The courts cannot be required to give legal effect to acts proscribed as unlawful." (Lord Bingham, para 19). "If the service of the notice to quit in the present case was unlawful under s22(3)(c), then the court could not give effect to it. If by seeking an order for possession, a landlord is acting in a way the legislature has held to be unlawful, then, again, the court cannot make such an order" (Lord Neuberger, para 160).
Connection between treatment and disability
Section 24(1) of the DDA provides that the reason for the treatment (the eviction in this case) must "relate to" the disability before there can be a finding of discrimination. Conventional language of causation is not used. So what do the words "relate to" mean? The answers given were as follows: The expression denotes "some connection, not necessarily close, between the reason and the disability" (Lord Bingham at para 10). "In my opinion, a 'reason' does not 'relate' to a disability for s24(1)(a) purposes unless the fact of the physical or mental condition in question has played some causative part in the decision-making process of the alleged discrimination" (Lord Scott, para 28). "If the physical or mental condition that constitutes the disability has played no motivating part in the decision of the alleged discriminator to inflict on the disabled person the treatment complained of, the alleged discriminator’s reason for that treatment cannot, for section 24 (1) purposes, relate to the disability." (Lord Scott at para 29). "The words 'relates to' suggest that a relatively loose or indirect connection between the reason and the disability would suffice." (Lord Neuberger, para 169).
Knowledge
The House held that a landlord can only be liable if he knows or, in all the circumstances, he reasonably ought to have been aware of the disability (Lord Neuberger, para 163; Lord Bingham, para 18; Lady Hale, para 86).
The comparator
When determining whether T had suffered "less favourable treatment", the correct comparator was not with people who did not have the disability and therefore did not sublet, but with "tenants of the appellant Council who have sub-let but whose sub-letting had no connection with schizophrenia or, perhaps, with any mental condition causally responsible for the sub-letting" (Lord Scott, para 30). Any other tenant, without a disability, who had sublet would have been treated in the same way. (Lord Bingham at para 16). There was therefore no discrimination.
To reach any other conclusion would mean "that a secure tenant whose failure (such as non-payment of rent, breach of covenant, or cesser of residence) would normally give a landlord a right to possession and a money claim, would be immune from suit, potentially indefinitely, if failure was in some way causally linked to his disability." (Lord Neuberger, para 142).
(Lady Hale dissented on this point).
Decision
T’s secure tenancy came to an end when he sublet and any tenancy terminated when the notice to quit expired. There being no discrimination, there was no defence to the claim for possession.
Comment
This is a significant decision not just in the field of landlord and tenant but for all types of discrimination case. In coming to its conclusion on the "comparator issue" the House of Lords held that Clark v Novacold [1999] ICR 951, CA was wrongly decided.
The change in approach to comparators and the necessity for a party to be aware of the disability (in order to be motivated by it) will make it much harder for disabled persons to raise their disability as a defence in possession claims. In particular a tenant who is in arrears with his rent will not be able to argue that the arrears have arisen as a result of a disability in answer to a Ground 8 claim for possession - assuming of course that other tenants of the landlord to whom Ground 8 applies who are not disabled are also evicted using that ground for possession.
None of the above affects the position where the landlord is relying upon a discretionary ground for possession. The fact of the tenant's disability will indeed be relevant in determining the reasonableness or otherwise of making an order for possession; and whether or not an order should be suspended. This is particularly important in anti-social behaviour cases.
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