London Borough of Lewisham v Malcolm

Factual and Procedural Background

The Appellant, a local authority landlord (“Appellant”), let a flat to the Respondent (“Respondent”) under a secure tenancy. In June 2004 the Respondent, who had previously applied to purchase the flat under the Right-to-Buy scheme, sub-let the entire premises and ceased to live there. By operation of the Housing Act 1985, that act stripped the tenancy of its “secure” status. The tenancy agreement also expressly prohibited sub-letting.

On discovering the sub-letting, the Appellant served a notice to quit on 6 July 2004 and, after the statutory period expired, issued possession proceedings in December 2004. The Respondent defended the claim, contending that his schizophrenia constituted a disability under the Disability Discrimination Act 1995 (“DDA 1995”) and that seeking possession was unlawful discrimination under ss. 22 and 24 of that Act.

The Circuit Judge granted possession, holding (i) the Respondent was not disabled at the material time, (ii) the sub-letting was not caused by any illness, and (iii) in any event a possession claim falling outside housing-law defences could not be defeated by the DDA. The Court of Appeal reversed that decision, finding disability established, a causal link between illness and sub-letting, and unlawful discrimination. The Appellant obtained permission to appeal to the Supreme Court-level tribunal (“the Court”).

Legal Issues Presented

1. Whether the Respondent satisfied the statutory definition of “disabled person” at the relevant time (DDA 1995, s. 1).
2. What constitutes the “treatment” for the purposes of s. 22(3)(c): the individual procedural steps (notice, claim, warrant) or the eviction process as a whole.
3. How to identify the correct “reason” for the treatment and the requisite connection to disability under s. 24(1)(a).
4. Who are the proper comparators in the “less favourable treatment” test within s. 24(1)(a).
5. Whether the landlord must know, or ought reasonably to know, of the tenant’s disability before liability can arise.
6. If discrimination is proved, does it supply a complete defence to an otherwise unanswerable possession claim.

Arguments of the Parties

Appellant’s Arguments

• The Respondent was not disabled within the meaning of s. 1 at the material time.
• The possession process was based solely on the Respondent’s voluntary sub-letting; that reason bears no relation to disability.
• Even if disability existed, the correct comparator is any non-disabled tenant who sub-lets and leaves; such a person would be treated identically.
• Knowledge is required; the Appellant was unaware of any disability when it served the notice to quit.
• The DDA cannot override a contractual and statutory right to possession once security is lost.

Respondent’s Arguments

• Schizophrenia, controlled only intermittently by medication, produced a substantial, long-term adverse effect and thus satisfied s. 1.
• The eviction process (notice, claim, enforcement) is a single act of “treatment” caught by s. 22(3)(c).
• The sub-letting was the product of the Respondent’s impaired judgment; therefore the reason for eviction “relates to” disability.
• Under the Novacold approach, the comparator is a tenant who has not sub-let; compared with such a person, the Respondent was treated less favourably.
• The DDA imposes strict liability; actual knowledge of disability is unnecessary.
• Because discrimination is unlawful, the court must refuse to enforce the possession claim.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Disability Finding. Revisiting the evidence of psychiatrists, the Court accepted the Court of Appeal’s view that the Respondent was disabled; however, that did not determine the appeal.

2. Treatment Identified. The entire eviction process—from notice to potential warrant—constitutes a single act of “treatment” under s. 22(3)(c).

3. Correct Comparator. Adopting a purposive yet text-led reading, the majority ruled that “others to whom that reason would not apply” refers to non-disabled persons in the same breach situation. Hence the proper comparators are tenants (without a relevant disability) who also sub-let and vacated. Because the Appellant would evict any such tenant, no less-favourable treatment arose.

4. Reason & Disability Link. Even if the sub-letting was influenced by schizophrenia (a factual finding the majority restored in favour of the Appellant), the landlord’s operative reason was purely housing-management—enforcing covenants and recovering scarce stock. That reason did not “relate to” disability in the statutory sense.

5. Landlord’s Knowledge. Liability in tort requires actual or reasonably imputed awareness of disability. The Appellant had no such knowledge when initiating possession; therefore strict liability could not arise.

6. Effect on Possession Right. Parliament did not intend the DDA to create a universal defence defeating contractual or statutory grounds for possession. Only demonstrable unlawful discrimination could bar enforcement; here none existed.

Holding and Implications

Holding: The appeal was ALLOWED; the Circuit Judge’s possession order was reinstated.

Implications: For premises cases under the pre-2005 DDA regime, (i) landlords are liable only where the disability is known or ought reasonably to be known, (ii) the correct comparator is a non-disabled occupier in the same breach position, and (iii) the Act rarely defeats possession claims arising from serious covenant breaches. No new duty of reasonable adjustment was recognised, leaving broader protection to subsequent statutory amendments.