Disability Discrimination Act 1995 – recent development

In July 2007, the Court of Appeal made an important ruling in the field of disability discrimination in the case of Malcolm v The London Borough of Lewisham [2007] EWCA Civ 763. The Disability Rights Commission became involved in the case as intervener.

Mr Malcolm was a tenant of the Council and he had sub-let the property. By doing so, he had lost his security of tenure (as he could no longer qualify as a secure tenant within the Housing Act 1985) so the Council served a 4 week Notice to Quit and commenced possession proceedings. Mr Malcolm defended those proceedings on the basis of the Disability Discrimination Act 1995 (the “1995 Act”), asserting that his mental impairment was the reason why he had sub-let the property, and therefore by seeking possession, the Council were subjecting him to less favourable treatment by reason of his disability. The trial Judge in the County Court rejected the defence and awarded possession.

On Mr Malcolm’s appeal, the Court of Appeal was of the view four issues were relevant:-

1. Whether Mr Malcolm could rely on the 1995 Act given that the Notice to Quit afforded the Council an immediate right to possession, without any further discretion to the Court to reject the claim. The Court of Appeal decided that the policy of the Housing Act 1985 did not take precedence over the 1995 Act, which was not qualified in any way. Therefore, Mr Malcolm could rely on the Act in his defence. If the discrimination was found to be unlawful, the Notice to Quit ceased to be valid and the Court could not proceed to evict – the Council could not be allowed to rely on an unlawful act;

2. Whether the trial Judge was wrong to find that Mr Malcolm’s mental impairment did not have a substantial adverse effect on his ability to carry out normal day-to-day activities for the purpose of the 1995 Act. On this point, the Court of Appeal ruled that the trial Judge had applied the wrong test, and should have considered the evidence of the illness as a whole, not just the evidence surrounding the period of sub-letting. The Court of Appeal noted that there was clear evidence of an inability to carry on normal day-to-day acts with more than a minor or trivial effect. Further, a person who had received hospital attention for schizophrenia would have a mental impairment with a long-term adverse effect on his ability to carry out day to day activities. The trial Judge had failed properly to consider the extent of what Mr Malcolm could not do, or the degree of his impairment, and had also not considered whether the impairment was more than trivial;

3. Whether the trial Judge was wrong in finding that the Council’s reason for starting possession proceedings, namely the subletting, was not “related” to the disability for the purposes of 1995 Act. The Court of Appeal was of the view that there must be a relationship between the sub-letting and the disability (albeit that the disability need not be the sole cause of the sub-let). The trial judge had overlooked the fact that Mr Malcolm’s decision to sub-let was different in quality from his other decisions. There was no need to find a causal link between the Council’s treatment of Mr Malcolm and his disability, and similarly there was no need to look for a schizophrenic episode that could have caused the sub-letting. The question was whether the current general state of health as a result of his mental condition meant that Mr Malcolm was likely to suffer difficulties of understanding. As Parliament had intended protection for a person in this position - even if he did not suffer from the disability all the time – the trial Judge should have applied a lesser test than the one adopted.

4. Whether the Council’s lack of knowledge of the disability at the time of the alleged discrimination was relevant to determining whether there was discrimination for the purposes of 1995 Act. In this regard, the Court of Appeal held that the 1995 Act did not make knowledge of the disability a necessary requirement - the requirement for a “reason” did not imply that there was knowledge, and the requirement for the reason for the less favourable treatment to “relate” to the disability was an objective test not dependent on actual knowledge. However, knowledge of the disability may be central to a justification response from the landlord. It was noted that by the time of trial, the Council knew the Appellant was asserting that he had a disability and therefore Mr Malcolm should be entitled to rely on his defence. The Court of Appeal did not think that Parliament could have intended that lack of awareness would be a bar to Mr Malcolm alleging unlawful discrimination.

Accordingly, the Notice to Quit and possession proceedings were declared unlawful, and Mr Malcolm therefore remains in the property as a contractual tenant.

The Court of Appeal’s interpretation of the legislation could mean that a landlord can unlawfully discriminate even if it has no awareness of the disability (or even grounds for suspecting a disability) or that the disability might have some connection with the conduct that prompts the possession action. In practical terms this may mean that there is a presumption in favour of the disabled party, and most cases will be resolved in favour of that party. Obviously this puts landlords in a very difficult position when seeking to evict occupants with a disability, and with permission to appeal to the House of Lords having been refused, landlords should cautionary note of the ruling.