Court of Appeal
Published August 28, 2007

Lewisham London Borough Council v Malcolm

Before Lady Justice Arden, Lord Justice Longmore and Lord Justice Toulson
Judgment July 25 , 2007

A landlord who served a notice to quit on a secure tenant who had unlawfully sublet his premises and who was a disabled person unlawfully discriminated against the tenant.

The Court of Appeal so held allowing the appeal of Courtney Malcolm, the tenant, from Judge Hallon who, in Bromley County Court on March 6, 2006, granted Lewisham London Borough Council possession of premises where the tenant lived as a secure tenant.

The judge had held that the Disability Discrimination Act 1995 did not apply because the tenant had lost his security of tenure, that he was not a disabled person under section 1 of that Act, and that his actions were not caused by his disability.

In 1985, schizophrenia was diagnosed in the tenant.

Mr Sylvester Carrott for the tenant; Mr James Goudie QC and Mr Stephen Evans for Lewisham; Mr Robert Latham and Ms Catherine Casserley for the Disability Rights Commission, intervening.

LADY JUSTICE ARDEN said that the 1995 Act made it unlawful for a person who managed any premises to discriminate against a person with a disability who occupied those premises by evicting him or subjecting him to any other detriment: see section 22(3)(c).

The principle issue was whether section 22(3)(c) applied to protect an occupier with a disability who had lost his security of tenure and become a tenant under a contractual tenancy, and against whom the landlord, having served a notice to quit, brought possession proceedings.

In that situation, absent the 1995 Act, the landlord had a right in law to possession, and the court had no discretion to withhold a possession order.

Manchester City Council v Romano ([1995] 1 WLR 2775) distinguished the case where the court had no discretion to withhold an order for possession and left open the question whether and if so how the 1995 Act applied to such cases.

It further held that the 1995 Act did not expressly create a defence to the possession claim, but that none the less the tenant could rely on discrimination as a defence to the possession claim.

The judge had erred in holding that the tenant’s mental impairment did not have a substantial adverse effect on his ability to carry out normal day-to-day activities. It was clear that the court should substitute a finding that the tenant was disabled within the meaning of the 1995 Act: see Goodwin v Patent Office ([1999] ICR 302).

The appeal was allowed and the possession proceedings dismissed.

Lord Justice Longmore and Lord Justice Toulson delivered judgments concurring in the result. Solicitors: Hartnells, Camberwell; Ms Kath Nicholson, Lewisham; Ms Louise Curtis, Manchester.

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