Disability discrimination and possession after Malcolm

The recent decision of the House of Lords in London Borough of Lewisham v Malcolm [2008] UKHL 43 has had a dramatic effect on disability law. Effectively reducing the basic concept of discrimination under the Disability Discrimination Act 1995 (DDA) to cases of direct discrimination, the decision limits the cases in which tenants suffering a disability will be able to draw assistance from the DDA. In particular, the decision reverses the recent line of authority in housing cases allowing tenants to rely on the DDA in defence of a claim for possession. This article examines the implications of the decision and the ways in which a housing practitioner can continue to raise disability issues in possession proceedings.

The effect of the decision in Malcolm

Mr Malcolm was a local authority tenant who had sublet his property, so losing his security of tenure. With no defence to the claim otherwise, he sought to defend on the basis that his eviction would be unlawful under the DDA. Mr Malcolm's case was that his decision to sublet the property was related to his condition of schizophrenia, which had led to him making irrational decisions.

Overruling the Court of Appeal decisions in Malcolm and in Romano v Manchester City Council [2004] HLR 47, the House of Lords adopted a restrictive interpretation of the concept of discriminatory treatment. Under s 24(1) of the DDA, a premises manager discriminates where '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'.

The effect of the House of Lords majority decision in Malcolm is that:

 It is not enough for the tenant to show that there is some causal or other connection between the reason for the treatment (that is, in Malcolm, the subletting of the flat) and the disability. The reason does not 'relate' to the disability unless the fact of the medical condition itself played a causative part in the decision-making process of the discriminator.

 The correct comparator is somebody who has acted in the same way as the tenant in question for a reason unrelated to a disability (in Malcolm, a non-disabled tenant who had sublet their flat). This is a change from the position previously, where the comparator would have been a non-disabled person who did not act in the same way as the tenant (in Malcolm, a secure tenant who did not suffer from schizophrenia and who had therefore not made the irrational decision to sublet their property).

 There can be no discrimination unless the landlord knew, or ought to have known, of the disability.

The House of Lords decided that in cases where, notwithstanding the above, discrimination was made out, the unlawful discrimination would provide a defence to the possession claim. A court should not lend itself to an unlawful act.

Where does this leave disabled tenants?

A tenant's disability can still be raised in their defence where a possession claim can be defended on the grounds that it is not reasonable to make a possession order. The health of the tenant or their family can of course be relevant to reasonableness. If the tenant can show that the behaviour complained of by the landlord is caused by or relates to a disability, this may help to persuade the court that it is unreasonable to make a possession order.

In rent arrears cases, common situations might involve a tenant who has accrued rent arrears but whose difficulties managing the rent account or dealing with housing benefit claims relate to a mental illness or other disability.

Where the Rent Arrears Protocol applies, the landlord will be in breach of the Protocol if the landlord is aware that the

tenant is vulnerable and fails to consider at an early stage whether or not any issues arise under the DDA and, in the case of a local authority, the need for an assessment under the National Health Service and Community Care Act 1990. Sanctions for breach of the Protocol include (where the claim is brought on a discretionary ground) adjournment, striking out or dismissing the claim for possession.

The ability of a tenant to raise disability arguments where the ground for possession is mandatory or where (as in Malcolm) there would normally be no defence to the claim is now severely limited. Potential defences which should still be considered are examined below.

Direct discrimination

A tenant will continue to have a defence in cases where direct discrimination can be made out, that is where it can be shown that the condition of the tenant itself was a motivating factor in the decision-making process and that the landlord would not have sought to evict a person who did not have the disability suffered by the tenant. Direct

discrimination will continue to provide an absolute defence to a possession claim under the DDA, subject to a justification for the treatment being shown by the landlord under s 24(3)(a) DDA, which one would expect to be extremely difficult in such cases. One would, however, expect cases where it can be shown that direct discrimination has taken place to be infrequent, particularly in the social housing sector.

Public law defence

There will be cases where the DDA no longer provides a defence after Malcolm where it will be appropriate to consider whether there is a defence on public law grounds, for example if the landlord has failed to consider the tenant's disability or to offer support and this is contrary to the Rent Arrears Protocol, or to the landlord's own policies including their disability equality scheme.

General equality duty

Under s 49A of the DDA, public authorities must have due regard to a number of matters including the need to take steps to meet disabled persons' needs, even if this requires more favourable treatment. It is possible that breach of the duty could, in appropriate cases, found a public law defence or a basis for judicial review. It will be important for a tenant's adviser to obtain the disability equality scheme which must be published by a public authority, under the Disability Discrimination (Public Authorities) (Statutory Duty) Regulations 2005, showing how it intends to fulfil its duties.

Duty to make adjustments

The landlord may have breached duties under s 24C or s 24D of the DDA (inserted by the Disability Discrimination Act 2005), which provide that a landlord unlawfully discriminates against a disabled tenant or occupier if they fail to take steps to provide an 'auxiliary aid or service' at the disabled person's request, or to change on request a practice, policy or procedure which makes it impossible or unreasonably difficult for the disabled person to enjoy the premises, or a benefit or facility they are entitled to use. Advisers should consider whether the tenant can be assisted by these provisions.

In situations where the landlord has failed to agree to a request to change practices or procedures that have a disproportionate effect on disabled persons, or to provide some aid or service to the disabled tenant/occupier, there may have been unlawful discrimination under the DDA. As well as providing a basis for a damages claim, this might assist a tenant defending possession, perhaps by providing a basis for a public law defence. Possible examples might include situations where a disabled tenant has requested an aid or service (such as large type rent statements for a visually impaired person, or perhaps support with rent or housing benefit matters) and this has not been provided. It might possibly also cover situations where a landlord has been notified (perhaps even after serving a notice or commencing proceedings) that their policies have a disproportionate effect upon disabled persons and has been requested not to pursue a claim against the disabled tenant, but has continued with the claim.

Disability discrimination legislation and the future

The House of Lords decision in Malcolm retreats on advances made in promoting equal treatment for disabled persons. As shown by Baroness Hale in her minority judgment, it is clear that Parliament meant the DDA to cover indirect discrimination as well as direct discrimination. There are good policy reasons for this. To create a level playing field for disabled people, it is not enough simply to require that the fact of their disability is ignored. It is also necessary for those with disabilities to have (using Baroness Hale's words) 'due allowance made for the consequences of their disability'. A law which only prohibits direct discrimination does not achieve this, and is of extremely limited value to disabled persons.

It is clear from the judgments in Malcolm that the Lords felt the two alternative interpretations of the DDA open to them were both unsatisfactory '“ in the words of Lord Neuberger, one was 'unattractively restrictive' and one 'extraordinarily far-reaching'.

In choosing the first option they favoured the interests of landlords over those of disabled tenants. One reason for the approach taken by the Lords relates to the limited scope of the justifications that can be relied on by landlords once a prima facie case of discrimination is made out. Under the current list of justifications contained in s 24(3) of the DDA there are very few cases, excepting those involving anti-social behaviour, where it will ever be possible for a landlord to succeed in showing that a justification applies.

Parliament must now be urged to enact legislation to make clear their intentions and to bring cases of indirect discrimination back within the scope of the DDA. Baroness Hale in her judgment also urges Parliament to expand the list of potential justifications for the landlord's actions in s 24(3). It may be that if Parliament does legislate to broaden the scope of the DDA it will also consider it necessary to broaden the scope of the justifications available.

This would be preferable to the current state of the law following Malcolm. Disabled tenants would at least have the right to have the consequences of their disability considered when action is taken against them, and the onus would be placed on the landlord to justify discriminatory treatment.