House of Lords
Published June 26, 2008
Lewisham London Borough Council v Malcolm
Before Lord Bingham of Cornhill, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury
Speeches June 25, 2008

A disabled person who was being evicted from his council flat because he had sublet the flat in breach of the terms of his tenancy and had moved elsewhere, was not being evicted for a reason which related to his disability nor was he being treated less favourably than others who were not disabled. He was therefore not suffering discrimination.

The House of Lords so held, allowing an appeal by the landlord, Lewisham London Borough Council, from the Court of Appeal (Lady Justice Arden, Lord Justice Longmore and Lord Justice Toulson) (The Times August 28, 2007; [2008] Ch 129) who had allowing an appeal by the tenant, Courtney Malcolm, from Judge Hallon who, in Bromley County Court on March 6, 2006, granted the landlord’s application for a possession order of Flat 4, 15 Waldram Park Road, Forest Hill, London.

The tenant, who suffered from schizophrenia, had sublet the premises in breach of the tenancy agreement. Under section 93(2) of the Housing Act 1985, the tenancy thereby ceased to be secure and became contractual terminable on service of a notice to quit.

The landlord served a notice to quit and commenced proceedings for possession. The tenant contended that he was disabled under the Disability Discrimination Act 1995 and that the landlord had unlawfully discriminated against him.

Mr James Goudie, QC and Mr Stephen Evans for the landlord; Mr Jan Luba QC and Mr Sylvester Carrott for the tenant; Mr Rabinder Singh QC, Mr Robert Latham and Miss Catherine Casserley for the Equality and Human Rights Commission as intervener.

LORD BINGHAM said that there were dangers in formulating lists of questions in such situations since those which were apposite in one case might be inapposite in another, but there were certain questions which called for an answer.

To what treatment was the tenant subjected? The landlord’s seeking possession.

What was the reason for that treatment? It was common ground that the reason for the treatment was the subletting of the flat.

Here, 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. The landlord could have been the subject of reasonable criticism had it acted otherwise than it did.

Did that reason relate to the tenant’s disability? 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 to do with his mental disability.

With the treatment of what comparators should the treatment of the tenant be com-pared? The correct comparison 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.

Was it relevant whether the landlord knew of the tenant’s disability? . The grounds of justification specified in the 1995 Act assumed that the landlord had knowledge of any disability.

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. The landlord was unaware of the tenant’s disability when the process of claiming possession was initiated. Thus the tenant had no defence.

That result would be expected to follow in almost all cases in which a landlord, public or private, claimed possession from a tenant who had committed a gross breach of the terms of the tenancy.

Lord Scott, Lady Hale Lord Brown and Lord Neuberger delivered speeches agreeing in the result.

Solicitors: Ms Kath Nicholson, Lewisham; Hartnells, Camberwell; Ms Louise Curtis, Manchester.

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