Secure tenancy – Possession – Respondent suffering from mental illness – Appellant landlords seeking possession for unlawful subletting – Disability Discrimination Act 1995 – Whether discrimination against respondent – Whether treatment of respondent for reason related to disability – Relevant comparators when deciding if treatment less favourable than that of others to which reason not applying – Appeal allowed
The respondent was a diagnosed schizophrenic whose condition was stabilised by medication. In 2002, he leased a flat from the appellant council on a secure tenancy governed by the Housing Act 1985. The tenancy agreement set out the effect of section 79(2) of that Act by stating that the respondent could not sublet without the appellants’ consent and that he would permanently lose his security of tenure if he did so. However, in June 2004, the respondent sublet his flat without consent and moved out; he was not taking his prescribed medication at the time. When the appellants discovered the subletting, they served notice to quit on the respondent and subsequently issued proceedings for possession.
In the county court, the judge rejected the respondent’s argument based upon allegations of unlawful discrimination against a person with a disability contrary to section 22(3)(c) of the Disability Discrimination Act 1995. He held that the 1995 Act did not apply where security of tenure was lost by the operation of law and that he had no discretion to refuse an order for possession; he also found that, in any event, the respondent’s mental impairment did not substantially affect his ability to carry out normal day-to-day activities so as to qualify him as being disabled within the meaning of section 1(1) of the 1995 Act. The Court of Appeal reversed that decision, finding that the necessary relationship existed between the appellant’s disability and the subletting, such that the appellants could be said to have treated the respondent less favourably than others, within the meaning of section 24(1)(a), for a reason that related to his disability. It held that there had been unlawful discrimination and ruled that the appellants’ lack of knowledge of the respondent’s disability did not preclude such a finding. The appellants appealed.
Held: The appeal was allowed.
Even assuming that the respondent was a disabled person within section 1(1) of the 1995 Act, no discrimination within the meaning of the Act had arisen. The less favourable treatment of which the respondent complained was the appellants’ conduct in seeking possession of the flat; the entire process from notice to quit to conclusion of possession proceedings should ordinarily be regarded as constituting a single act of evicting a tenant. The relevant reason for the treatment was that which operated on the mind of the appellants as the alleged discriminators. If the physical or mental condition of a complainant had played no motivating part in the decision of the alleged discriminator to inflict upon the disabled person the treatment complained of, the reason for that treatment could not “relate to” the disability for section 24(1)(a) purposes. A reason could not relate to a condition of which the alleged discriminator was unaware. To establish the statutory tort of discrimination against a disabled person, it was necessary to show that the alleged discriminator knew or ought to have known of the disability. The respondent’s schizophrenia was not present in the mind of the appellants when deciding to take possession action. Their reason for seeking possession was the subletting, and that reason did not “relate to” the respondent’s disability within the meaning of section 24(1)(a).
Furthermore (Baroness Hale dissenting on the issue), even if the reason for the appellants’ treatment of the respondent had related to the respondent’s disability, he had not been treated less favourably than others to whom the reason did not apply. In identifying the appropriate comparators, a meaningful comparison had to be made between treatment that was discriminatory and treatment that was not. The correct approach was to leave out of account the disability-related reason for the treatment and to ask whether, in the absence of that reason, the treatment complained of would have happened. The relevant comparators were, accordingly, other tenants of the appellant who had sublet. The respondent had been treated in exactly the same way as such persons. If a tenant had sublet in breach of the tenancy agreement, there was no point in making the lawfulness of the action taken by the landlord dependent upon whether notice to quit would have been served on a tenant who had not sublet: Clark v Novacold [1999] 2 All ER 977 disapproved.
Per Lord Bingham, Baroness Hale and Lord Neuberger: It was not the case that a claim for possession, to which there was no defence under the housing legislation, could never be defeated even where the claim was shown to be discriminatory contrary to the 1995 Act. The courts could not be required to give legal effect to acts proscribed as unlawful.
James Goudie QC and Steven Evans (instructed by the legal department of Lewisham London Borough Council) appeared for the appellants; Jan Luba QC and Sylvester Carrott (instructed by Hartnells) appeared for the respondent.
Sally Dobson, barrister
