Landlord and Tenant – disability discrimination
London Borough of Lewisham v. Malcolm [2008]. This decision of the House of Lords overrules the Court of appeal’s decision in Clark v. TDG Ltd t/a Novacold. It concerns the decision of a housing authority to evict a schizophrenic tenant who had unlawfully sublet his flat.
Briefly, it is unlawful for a person managing any premises to discriminate against a disabled person occupying those premises by evicting the disabled person or subjecting him to any other detriment. Under the Disability Discrimination Act 1995, a person discriminates against a disabled person if:
- 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 in question is justified.
Mr Malcolm is schizophrenic. He was a secure tenant of a property let by Lewisham Borough Council. The Council served notice to quit following the unlawful subletting of the premises by Mr Malcolm. Mr Malcolm argued that his action in unlawfully subletting was related to his disability and that by seeking to evict him Lewisham was discriminating against him treating less favourably for a reason that related to his disability.
The first question addressed by the House of Lords was to ask who Mr Malcolm should be compared with. If the Novacold decision was correct the question would be whether Mr Malcolm had been treated less favourably than someone who had not illegally sublet his flat. The House of Lords overruling Novacold, held that the correct question was whether Mr Malcolm had been treated less favourably than a non disabled comparator who had illegally sublet.
The second issue considered by the House of Lords was whether the reason related to the disability. They concluded that the reason for Mr Malcolm’s eviction (the illegal subletting) was not related to his disability. The test requires the disability to have played some part in the landlord’s decision making process whereas, on the facts of this case, the decision was one of housing management and had nothing to do with mental disability.
Finally, the House of Lords considered whether a respondent could be held liable for discrimination if he was unaware of the claimant’s disability. By a unanimous decision the House of Lords decided that a respondent (here a landlord) cannot be liable for discrimination unless it knows (or ought reasonably to know) of the claimant’s disability.
To date the issue of discrimination within the landlord and tenant context has been confined to housing authorities and social landlords. The Novacold decision (which has now been overturned) made it easier for disabled claimants to establish a prima facie case of disability related discrimination and put the onus on the respondent to prove justification. Following the Novacold decision, and the cases which followed, many landlords felt unable to take any action against tenants who, for reasons related to their disability, breached the terms of their tenancy. The decision will be welcomed by landlords but the issue is likely to be addressed again in the forthcoming Equality Bill.
For more information contact Michael Johnstone
DDI 01453 700623
