London Borough of Lewisham v Malcolm & Anor

The Disability Discrimination Act 1995 may provide a defence to possession proceedings even where the occupier has lost security of tenure and the court otherwise has no discretion to refuse possession. A landlord’s pursuit of possession is unlawful if it constitutes unjustified discrimination. A disability-related reason need not be the sole or actual cause of the relevant conduct. It is sufficient that the person’s disability created an appropriate relationship with the conduct, including susceptibility to difficulty in understanding its legal consequences. Lack of knowledge of the disability does not prevent discrimination under section 24, although it may be relevant to justification.

The appellant, a local-authority tenant with schizophrenia, lost his secure tenancy after subletting his flat without consent. The local authority served a notice to quit and brought possession proceedings. Her Honour Judge Hallon, sitting in the Bromley County Court, ordered possession, holding that the Disability Discrimination Act 1995 did not apply after the loss of security of tenure and that the appellant was not disabled for the statutory purpose.

The appeal concerned whether the Act could be relied on where possession was otherwise mandatory, whether the appellant was disabled, whether the subletting was related to his disability, and whether the landlord’s lack of knowledge was relevant.

The majority allowed the appeal. Arden LJ delivered the principal judgment and Longmore LJ agreed. The possession proceedings were dismissed. The court declared that the claim for possession, and by majority the notice to quit, constituted unlawful discrimination contrary to Part III of the Disability Discrimination Act 1995.

1. Section 22(3)(c) was unqualified. Section 93(2) of the Housing Act 1985 removed security of tenure after an unauthorised subletting, but did not confer a right to possession notwithstanding other legislation. The DDA could therefore be relied on as a defence even though the court had no discretion to withhold possession. The court would not assist a landlord to obtain an order whose effect was unlawful discrimination.
2. The appellant was disabled. The statutory guidance established that a substantial adverse effect meant more than a minor or trivial effect. The assessment concerned impairment of ability, not merely activities which the person could perform. The court had to consider the evidence as a whole, including the effect which treatment prevented from appearing. The evidence of schizophrenia, impaired understanding, confusion, self-neglect and marked psychomotor retardation satisfied the test.
3. The subletting was related to the disability. Applying Clark v Novacold Ltd [1999] ICR 951, the disability did not need to be the sole or actual cause of the subletting. The appellant’s then-current condition made him susceptible to significant difficulty in understanding the consequences of a transaction which terminated his security of tenure. That relationship was sufficient. The statutory comparison was with persons to whom the reason for the treatment did not apply, and justification was not established.
4. The majority held that section 24 contained no knowledge requirement. The relationship between the reason and the disability was an objective question. Toulson LJ expressed a different view about liability where the landlord had no awareness or grounds for awareness at the relevant time, and would not have declared the notice to quit unlawful. He nevertheless agreed that knowledge existed by trial and that the possession claim had to be dismissed.

The secure tenancy was not revived and the right to buy was lost. The majority’s declaration concerning the notice to quit meant that the contractual tenancy had not terminated.

• Court of Appeal (Civil Division) [2007] EWCA Civ 763: appeal allowed; possession proceedings dismissed; declarations of unlawful discrimination made.
• Bromley County Court: on 6 March 2006, Her Honour Judge Hallon ordered possession and rejected the appellant’s principal DDA arguments.