The House of Lords, in London Borough of Lewisham v Malcolm, has considered the meaning of s.3 of the Disability Discrimination Act, finding that liability for discrimination can only take place when the alleged discriminator knows the individual is disabled. It also found that ‘a reason which relates to the disabled person’s disability’ must be construed narrowly and the correct comparator is someone to whom the underlying reason still applies.

The case concerned the subletting of a council flat by Mr Malcolm who suffered from a recognised mental illness. His illness was not disabling when controlled by medication but at the time of the subletting (which was in contravention of Lewisham’s rules) he had stopped taking his drugs and his ability to carry out his normal day to day activities was substantially impaired. The House of Lords stated its job was to ascertain the real reason for Lewisham’s claim for possession of the flat. It seemed inescapable that it acted to repossess because it was not prepared to allow tenancies to continue where the tenant was not living in the premises. The House accepted that, but for his mental illness, Mr Malcolm would probably not have sublet his flat and moved elsewhere but Lewisham’s reason for seeking possession was a pure housing management decision which had nothing to do with his mental disability.

The House also decided, not without misgiving, that the correct comparator in this case should be persons without a mental disability who have sublet a Lewisham flat and gone to live elsewhere. It further held that as a claim based on unlawful discrimination on ground of disability may be made the subject of civil proceedings, this pointed to a requirement of knowledge. In so deciding, the House found the Court of Appeal had erred in its finding in Clark v Novacold.