Mayor and Burgesses of the London Borough of Lewisham (Appellants) v Malcolm (Respondent)

Under Part III of the Disability Discrimination Act 1995, less favourable treatment is assessed against a person without the relevant disability who is otherwise in the same material circumstances. A tenant evicted for subletting is therefore compared with a non-disabled tenant who has also sublet.

For treatment which is not inherently discriminatory, liability requires actual or constructive knowledge of the disability. The court must identify the real, case-specific reason operating on the alleged discriminator’s mind. A possession claim based on a tenancy breach is not discriminatory where the landlord would act identically against a non-disabled tenant.

If eviction or possession proceedings do constitute unlawful discrimination, the court cannot enforce or facilitate that unlawful act.

The respondent was a secure council tenant who suffered from schizophrenia. He sublet his flat and ceased to occupy it as his principal home. Under the Housing Act 1985, the subletting permanently ended his security of tenure. The appellant council served notice to quit and sought possession.

The county court granted possession. It found that the respondent was not disabled within the statutory definition and that his illness had not caused the subletting. The Court of Appeal allowed his appeal, dismissed the possession claim and declared that the eviction process was unlawful discrimination: [2007] EWCA Civ 763; [2008] Ch 129.

The central issues were the comparator required by section 24(1)(a) of the Disability Discrimination Act 1995, the necessary connection and knowledge concerning the disability, and whether unlawful discrimination could defeat an otherwise unanswerable possession claim.

1. Disposition. The House unanimously allowed the council’s appeal and restored the county court’s possession order. Lords Bingham, Scott, Brown and Neuberger formed the majority on the central comparator issue. Baroness Hale agreed in the result but dissented on that issue.

2. Comparator. Lords Bingham, Scott, Brown and Neuberger held that section 24(1)(a) of the Disability Discrimination Act 1995 required a meaningful comparison with a person who did not have the relevant disability but was otherwise in the same material position. The respondent was therefore compared with a non-disabled council tenant who had sublet and ceased to occupy the premises. Because the council would have sought possession against such a tenant, there was no less favourable treatment. The contrary construction adopted in Clark v Novacold Ltd [1999] ICR 951 was rejected and its governing comparator rule displaced.

3. Reason and knowledge. Lord Bingham identified the relevant reason as the real reason operating on the alleged discriminator’s mind, objectively ascertained. Lord Scott held that the disability must play some motivating part in the decision. Baroness Hale and Lord Neuberger accepted that actual or constructive knowledge sufficed, without requiring knowledge that the condition met the statutory definition. All five Law Lords agreed that a person ordinarily cannot incur liability for a non-inherently discriminatory act when unaware, and without reason to be aware, of the disability.

4. Application. The council acted because the respondent had sublet, ceased occupation and thereby defeated the social-housing purpose of the tenancy. A majority also considered that the Court of Appeal should not have displaced the trial judge’s finding that the schizophrenia had not caused the subletting. The respondent was disabled within section 1(1), but neither the relevant reason nor the comparative treatment established unlawful discrimination.

5. Eviction process. Per Lord Bingham, Baroness Hale and Lord Neuberger, the relevant treatment was ordinarily the eviction process as a whole, from notice to quit through possession proceedings. A change in the landlord’s knowledge or reasons during that process could nevertheless affect the lawfulness of later steps.

6. Effect of unlawful discrimination. Lords Bingham, Hale and Neuberger rejected the proposition that an otherwise unanswerable housing claim could never be defeated by the Act. If the notice or possession claim were itself unlawful discrimination, the court could not give legal effect to or facilitate that unlawful act. This point did not alter the result because no discrimination was established.

7. Baroness Hale’s differing view. She would have retained the comparator used in Clark v Novacold Ltd, namely a person to whom the reason for the treatment did not apply. She nevertheless allowed the appeal because the trial judge was entitled to find no sufficient connection between the illness and the subletting.

1. House of Lords: Unanimously allowed the council’s appeal, set aside the Court of Appeal’s order and restored the county court possession order: [2008] UKHL 43.
2. Court of Appeal: Allowed the tenant’s appeal, dismissed the possession proceedings and declared that the notice to quit and possession action were unlawful discrimination: [2007] EWCA Civ 763; [2008] Ch 129.
3. County Court: Judge Hallon granted possession to the council. She held that loss of statutory security left no discretion to refuse possession and made alternative findings that the tenant was not disabled and that his illness had not caused the subletting.