The Disability Discrimination Act 1995 makes it unlawful to discriminate against a person with a disability by evicting or subjecting him or her to any other detriment: see section 22. How does this affect landlords who are seeking possession because tenants are in arrears with rent, or are in breach of other terms of their tenancy agreements? Is the obligation to treat disabled tenants no less favourably than others? Or are landlords obliged to treat disabled tenants more favourably?
The Court of Appeal decision in Lewisham London Borough Council v Malcolm [2007] EWCA Civ 763; [2007] 32 EG 88 (CS) suggested that the scales were weighted heavily in the tenant’s favour. The case involved a council tenant who sublet his flat in breach of his tenancy agreement. The council, who were unaware that he had mental health problems, issued proceedings for possession. The tenant argued that his actions resulted from his schizophrenia and that the landlord had unlawfully discriminated against him. The Court of Appeal upheld his claim. It decided that the subletting was related to the tenant’s condition (which involved susceptibility to distortions of thinking), and that lack of knowledge of a person’s disability is no defence to a discrimination claim. The House of Lords has overturned that decision: see Lewisham London Borough Council v Malcolm [2008] UKHL 43; [2008] PLSCS 181.
A person discriminates against a disabled person “if, for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply”. What does this mean? The reason for the eviction was the unlawful subletting. So, should the court compare the treatment of the tenant with the treatment of tenants who had not sublet at all? The majority of the Lords thought not. They ruled that this would render disabled tenants immune from action, potentially indefinitely, for non-compliance with their leases, if the non-compliance could be linked to their disability.
The correct test was whether disabled people were treated in the same way as non-disabled people in the same situation. The court must compare the treatment the disabled tenant had received with the treatment of tenants without a disability who had entered into unlawful sub-lettings. If those tenants could expect to receive a notice from the council terminating their tenancies, then Malcolm had not been treated any less favourably.
The Lords unanimously agreed that the test laid down in the 1995 Act requires something present in and that affects the mind of the discriminator. It would require very clear statutory drafting to render a person liable for damages for discrimination against a disabled person if the perpetrator was unaware of a disability that could render the act discriminatory. However, the position may be different if knowledge can be imputed to a landlord.
Clearly, landlords must remain alive to disability issues. In addition, an exercise that was originally lawful could become unlawful if the landlord becomes aware that the tenant is ill or disabled during the course of eviction proceedings.
Allyson Colby is a property law consultant
