London Borough of Lewisham v Malcolm

The House of Lords allowed the landlord's appeal and reinstated the county court judge's possession order. The appeal turned on the construction and application of sections 22 and 24 of the Disability Discrimination Act 1995: in particular, (i) what constitutes a "reason which relates to" a disabled person's disability; (ii) who are the appropriate comparators for the "less favourably" limb of section 24(1)(a); and (iii) whether the alleged discriminator must know (or ought to know) of the disability. The majority concluded that a landlord's reason does not "relate to" the disability for section 24(1)(a) purposes unless the disability has played some part in the landlord's decision-making; and that, on the correct comparator approach adopted by those Lords, the tenant had not been treated less favourably. The House therefore held that there was no unlawful discrimination on the facts and the possession claim could succeed.

This was an appeal from the Court of Appeal ([2007] EWCA Civ 763) against a county court possession order obtained by the London Borough of Lewisham (the Council) after the respondent tenant, Mr Malcolm, had sublet his secure council flat and ceased to occupy it. The tenant relied on Part III of the Disability Discrimination Act 1995 to resist possession, pleading that his subletting and relinquishing occupation were attributable to schizophrenia and that the landlord's conduct (notice to quit and subsequent possession proceedings) therefore amounted to unlawful discrimination under sections 22 and 24 of the 1995 Act.

The House was required to resolve several issues:

• the factual question whether Mr Malcolm was disabled within section 1 of the 1995 Act at the relevant time;
• whether the Council's conduct constituted the "treatment" complained of;
• whether the Council's reason for seeking possession "related to" Mr Malcolm's disability;
• who are the proper comparators for the "less favourably" inquiry in section 24(1)(a);
• whether the discriminator's knowledge of the disability is required; and
• whether an unlawful act under the DDA can defeat an otherwise unanswerable claim to possession.

The Lords (majority) concluded that the treatment was the Council's conduct in seeking possession, and that the key legal questions were statutory constructional ones under sections 22 and 24. They emphasised that the statutory phrase "relates to" denotes a connection between the reason and the disability, but for actionable discrimination the disability must have played some part in the mind or decision-making of the alleged discriminator (knowledge or at least imputed knowledge being important). On the comparator point the majority preferred a construction that makes the comparison with others to whom the reason (including its disability element) would apply — thereby avoiding a comparison that would be pointless in many possession cases. Applying these principles to the facts the House concluded there was no unlawful discrimination: either because the Council's reason did not relate to the disability in the requisite sense, and/or because the claimant had not been treated less favourably than the correct comparator group. The appeal was therefore allowed and the possession order reinstated.

Appeal allowed. The House held that for section 24(1)(a) to be engaged the discriminator's reason must have some causal or motivating connection with the disability as perceived or imputable to the discriminator; a meaningful comparator must be identified so the comparison is not rendered pointless; on the facts there was no unlawful discrimination and the landlord's possession claim was therefore not defeated.

Appeal from the County Court (trial judge: Her Honour Judge Hallon), allowed by the Court of Appeal ([2007] EWCA Civ 763) which dismissed the possession claim; the House of Lords ([2008] UKHL 43) allowed the landlord's appeal and reinstated the county court judge's possession order.