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Court of Appeal decision reinforces protection for disabled
persons
7 August 2007
At the end of July, the Court of Appeal handed
down a judgment in the case of Lewisham Borough Council -v-
Courtney Malcolm, which has dramatically extended the reach of
legislation aimed at preventing disability discrimination. The
decision will have considerable impact on all landlords in their
day-to-day handling of any of their tenants who are disabled. Its
implications are not confined to residential properties let by
local authorities and social landlords, although that sector will
be particularly affected by it.
The facts
Mr Malcolm was Lewisham Borough Council's (the
“Council”) secure tenant of a flat pursuant to section 79 of the
Housing Act 1985. As a secure tenant, Mr Malcolm had a statutory
right to buy the flat from the Council and had taken almost all
steps necessary to complete his purchase. Shortly before he was due
to complete, Mr Malcolm, through a letting agency, sublet his flat
in breach of one of the tenant's covenants. A fundamental feature
of a secure tenancy is that the tenant must occupy it as his only
home. Accordingly, it cannot be sublet without the consent of the
relevant local authority. If it is, the tenant will lose both his
status as a secure tenant and with it the right to buy. As a result
of the unlawful subletting Mr Malcolm not only broke one of the
terms of his tenancy, but also in so doing took the tenancy outside
the secure tenancy regime of the Housing Act 1985 altogether,
losing therefore his statutory right to buy. His status
automatically became that of a weekly contractual tenant lacking
any security of tenure whatsoever. The Council, when it found out
what he had done, responded by refusing to complete the sale of the
flat to Mr Malcolm and by giving him a valid notice to quit. When
Mr Malcolm failed to leave, the Council issued proceedings for
possession. On the face of things, these proceedings should have
been open and shut in the Council's favour but they were
complicated by the Disability Discrimination Act 1995 (the
"Act").
For a long time Mr Malcolm had been diagnosed
as a schizophrenic, an illness he had previously successfully
controlled with medication. However, during the relevant period, Mr
Malcolm had stopped taking his medication and as a result became
psychotic, which period ended with him subletting his flat.
Mr Malcolm's defence to the possession
claim
Mr Malcolm defended the proceedings by relying
on section 22(3)(c) of the Act. This states that "it is
unlawful for a person managing any premises to discriminate against
a disabled person occupying those premises…by evicting the disabled
person, or subjecting him to any other detriment". Also under
the Act, "a person discriminates against a disabled person if
(a) 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; and (b) he cannot
show that the treatment in question is justified".
A "disabled person" is defined by the
Act as a person having "a physical or mental impairment which
has a substantial and long term effect on his ability to carry out
normal day-to-day activities". If the disability can be
controlled with medication, the disability is taken to have the
effect it would have were the person not taking such
medication.
The decision
Plainly Mr Malcolm was disabled within the
meaning of the Act. The court did not have any discretion when
deciding whether a possession order should be granted, in
circumstances where Mr Malcolm lacked security of tenure.
Nevertheless, the court held that granting a possession order would
constitute discrimination against Mr Malcolm and therefore would be
unlawful within the Act. Mr Malcolm was disabled as a result of his
schizophrenia. He had sublet the flat while he was suffering
from a schizophrenic episode. The Council's decision to serve
notice to quit and institute possession proceedings were as a
consequence of the subletting and were held therefore to
"relate" to Mr Malcolm's disability and to constitute
discrimination on grounds of disability.
The result of this decision is that unless Mr
Malcolm were to provide other grounds for obtaining possession of
his flat unrelated to his disability there is no way that the
Council can obtain possession against him. The Court of Appeal, by
applying the disability discrimination legislation to the facts,
conferred security of tenure on Mr Malcolm in circumstances where
he otherwise did not enjoy any. This can, in landlord and tenant
terms, only be regarded as remarkable and shows the extent to which
discrimination legislation is treated as pre-eminent when placed
alongside other legislation.
In reaching the decision, the Court of Appeal
made various points that must be taken into account by all
landlords of both commercial and residential premises in their
mission to comply with disability discrimination legislation. For
example, there is no need for the disability to be the cause of the
action by the disabled person that results in the alleged
discriminatory treatment. So in this case, Mr Malcolm did not need
to show that it was his mental state as a schizophrenic that caused
him to sublet his flat; the two merely had to be
"related". The fact that the Council did not know about Mr
Malcolm's condition is irrelevant. In fact, the court held that a
local authority in such a case was under an obligation to make
enquiries to see if the subletting, being a breach of a secure
tenancy with such serious consequences, was caused by any
disability and to address the court on this issue even if not
raised by the tenant. There is no need for the disabled person
actually to be suffering from the relevant disability at the
relevant time. A person suffering from schizophrenia but
controlling his condition by medication would still have the
protection of the Act.
What the case means for
you
The implications of the decision are wide
ranging, extending well outside the context of residential
tenancies, if as a landlord your objective is to evict a tenant who
is in breach of the terms of his lease. Take a commercial tenant
who is in breach of repairing covenants that he cannot face
complying with as he is suffering from depression. In this case,
the Lewisham –v- Malcolm decision means the landlord may
not in practice be able to forfeit the lease in the sense that to
seek a court order for possession would be to discriminate against
the tenant on grounds of his disability. Imagine a tenant who
suffers a nervous breakdown and is not expected to recover for a
few years. During that time, the tenant does not pay his rent.
Again, the landlord could be prevented from recovering possession.
Section 22 of the Act extends to "subjecting [the
disabled person] to any other detriment" so other remedies
usually available to the landlord may also be resisted, e.g.
distress or court proceedings for recovery of rent arrears.
The answer is not of course to seek to avoid
letting premises to people who benefit from the protection of the
Act as that of itself would be clearly unlawful let alone
reprehensible morally. In reality, what the court is doing in cases
like this is feeling its way somewhat in the dark when considering
what constitutes permissible and impermissible actions where
discrimination issues are raised and defining these as it goes
along. While undertaking this process, when it comes to conflicting
rights between landlords and disabled tenants the law seems to be
indicating a policy preference in favour of the victim of
discrimination. Accordingly it appears clear that in such
circumstances landlords will have to learn to temper their
expectations and be prepared to make special allowance for any
disabled tenants. Furthermore it should not be overlooked that
disability discrimination may lead to an award of compensation to
the victim of discrimination in addition to inhibiting a landlord’s
rights.
For more information or advice, please
contact Sarah or David.
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