| DISCRIMINATION — Disability — Housing — Landlord seeking possession against disabled tenant on ground of unlawful subletting — Whether unlawful discrimination — Disability Discrimination Act 1995, ss 22(3), 24(1)
Lewisham London Borough Council v Malcolm (Equality and Human Rights Commission intervening) [2008] UKHL 43; [2008] WLR (D) 205
HL(E): Lord Bingham of Cornhill, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury: 25 June 2008
A landlord’s claim for a possession order against a disabled tenant who sublet the premises in breach of the tenancy agreement did not amount to unlawful discrimination for a reason which related to the tenant’s disability. A tenant without a disability who had similarly sublet the premises would have been treated in exactly the same way as the tenant with a disability.
The House of Lords so held, allowing an appeal by the landlord, Lewisham London Borough Council, from a decision of the Court of Appeal (Arden, Longmore and Toulson LJJ) [2008] Ch 129 on 25 July 2007, allowing an appeal by the tenant, Courtney Malcolm, from a decision of Judge Hallon sitting in the Bromley County Court on 6 March 2006, granting the landlord’s application for a possession order against the tenant in respect of residential premises at Flat 4, 15 Waldram Park Road, Forest Hill, London.
The tenant, who suffered from schizophrenia, sublet the premises in breach of the tenancy agreement. The landlord served a notice to quit and commenced proceedings for possession. The tenant contended that he was a disabled person under the Disability Discrimination Act 1995, and that in bringing the proceedings the landlord had unlawfully discriminated against him so that the court was precluded from making a possession order against him.
LORD BINGHAM said that the treatment complained of was the landlord’s conduct in seeking possession of the flat. It was common ground that the reason for the treatment was the subletting of the flat by the tenant. It seemed inescapable that the landlord, as a social landlord with a limited stock of housing and a heavy demand from those on its waiting list, acted as it did because it was not prepared to allow tenancies to continue where the tenant was not living in the premises demised. That was the real reason for the treatment. Did that reason relate to the tenant’s disability? It seemed clear that the draftsman of s 24(1)(a) of the 1995 Act deliberately eschewed the conventional language of causation in favour of the broader and less precise expression “relates to”. In that context the expression denoted some connection, not necessarily close, between the reason and the disability. But for the tenant’s mental illness, he would probably not have behaved so irresponsibly as to sublet his flat and move elsewhere. But the landlord’s reason for seeking possession—that the tenant had sublet the flat and moved elsewhere—was a pure housing management decision which had nothing whatever to do with his mental disability. With the treatment of what comparators should the treatment of the tenant be compared? The correct comparison in this case should be with persons without a mental disability who had sublet one of the landlord’s flats and gone to live elsewhere. The tenant had not been treated less favourably than such persons. He had been treated in exactly the same way. Was it relevant whether the landlord knew of the tenant’s disability ? S 25(1) of the Act provided that a claim based on unlawful discrimination on grounds of disability could be made the subject of civil proceedings in tort, damages being recoverable for injury to feelings in addition to other relevant heads of damage. That pointed towards a requirement for knowledge, or at least imputed knowledge. It followed that the tenant had not been the subject of unlawful discrimination because the landlord’s reason for claiming possession did not relate to his disability and he was not treated less favourably than someone without that disability. Moreover the landlord was unaware of the tenant’s disability, at any rate when the process of claiming possession was initiated. Thus the tenant had no defence to the landlord’s claim.
LORD SCOTT, BARONESS HALE, LORD BROWN and LORD NEUBERGER delivered speeches agreeing in the result.
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Appearances: James Goudie QC and Stephen Evans (Borough Solicitor, Lewisham London Borough Council) for the landlord; Jan Luba QC and Sylvester Carrott (Hartnells) for the tenant; Rabinder Singh QC, Robert Latham and Catherine Casserley (Head of Legal Services, Equality and Human Rights Commission) for the Commission as intervener.
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