As for the putative bonanza, we certainly agree.

The question of the comparator to establish discrimination is a thorny and lengthy one. I think I will have another go at it in a follow up post later today or tomorrow, and respond to your comments in that.

Thanks for the kind words.

Now, to return to your post.

The appropriate comparison.
We may well need to read our employment law cases, but it seems to me that it is the employment law which is causing the problem! One simply cannot compare employment law with housing law.

A tenant under a secure or assured tenancy can only have an order for possession made against them where there has been proven default on their part (failure to pay rent, observe the tenancy conditions etc or part with possession). It is that very default which entitles the landlord to serve the NSP or NTQ and which, in turn, empowers the court to make a possession order.

By contrast, an employer who wants to take action against an employee – disabled or not – needs no such default. If I am the MD of a company and I decide to sack Mr X because he has red hair, I can do so. It may prove a particularly expensive decision when ET proceedings are issued but I do have that power to act unilaterally and unreasonably. That is a power which simply isn’t open to a LA or RSL.

It is that difference in power which – surely – is fatal to any comparison. In an employment case it will (often) be (relatively) easy to find the appropriate comparator. I imagine that, in organisations of a certain size, you could find a person to personify the appropriate comparator in the same office or department.

By contrast, in housing law, it is almost impossible to find an appropriate comparator. A person who has not parted with possession simply cannot be subjected to valid possession proceedings on that basis. How can there be a valid comparison in these circumstances?

I’m not sure I understand what you mean by “…the argument, via Richmond, that Lewisham would have claimed possession against anyone who had unlawfully sub-let cannot stand as ‘non-discrimination’ as there are plenty of Lewisham tenants to whom the reason for the treatment did not apply.” Once I understand it, I’ll try and decide if I agree or not!

s.24(3)(b)
There is something in this – certainly enough for a landlord to run a credible argument. My only though is whether there is a difference between a contract and an “enforceable agreement”, which is what s.24(3)(b) speaks of. This may be a distinction without a difference but, if the draftsman meant to say “contract” – why didn’t he just use that word?

A bonanza
I think it is awful that the only people who will actually benefit from the decision in Malcolm are lawyers. Clients – both landlords and tenants – need accessible law and certainty. It is outrageous that something as important as the protection of the disabled should be so complicated and unclear. From the tone of the comments on this blog, I suspect we’ll be able to agree on that!

I’m more persuaded by the ‘agreement on rent arrears as contract’ argument enabling s.24(3)(b) to bite. I would guess that the same might apply to a behaviour agreement, although how far either of these could be construed as contracts is surely arguable. Neither of these would apply in the case of Mr Malcolm, though.

I would consider that if one was arguing incapacity to enter a contract, CPR 21 is definitely engaged. While depression might not engage CPR 21, but fall under the DDA, I doubt it would count as incapacity to enter…

In regard to Richmond, I’ve had a rethink as well. As suggested above, the real issue is that of the correct comparator for establishing discrimination. That is what paras 96-104 are about and also 133 and 154-159. Novacold means that the comparator is a person to whom the reason for the treatment does not apply (assuming that the relation between the disability and the reason has been established). Thus for example, a person who had not sublet, did not have rent arrears, had not caused nuisance etc..

This is a decision that the Court of Appeal considers itself bound by. So the argument, via Richmond, that Lewisham would have claimed possession against anyone who had unlawfully sub-let cannot stand as ‘non-discrimination’ as there are plenty of Lewisham tenants to whom the reason for the treatment did not apply.

Where Richmond may apply is outlined at para 158, where “the complainant’s treatment is of entirely general application” and the reason for the treatment is of general application – i.e where there is no possible comparator who would lack the reason for the treatment. But then the complainant cannot point to a disability related reason for the treatment. As noted at 159, this means the comparative test either doesn’t arise, or is fulfilled. Nothing in between.

So I stand by Richmond falling foul of Novacold in virtually any possession case I can think of where the reason for seeking possession is related to the disability. And I suppose it means that housing people like me need to get a grip on some employment law.

I hope that you are not right about another Brent v Burrows, but suspect you are. Legislation to introduce a general reasonableness justification also worries me a bit, but on the professional plus side, would surely be a litigator’s bonanza.

However, turning to the law as it currently stands. I’ve thought more about the s.24(3)(b) argument. I think it will still be arguable, albeit with a minor modification from the original article.

Whilst it may not work in relation to the original tenancy agreement, (the phrase “is incapable of entering into…” suggests the formation of an agreement which post-dates the emergence of the disability) one could still argue that the inability to enter into an agreement to reduce the rent arrears (something landlords are required to attempt under the Rent Arrears protocol) would be sufficient to bring s.24(3)(b) into play. If the tenant cannot make an agreement to reduce their arrears, then the possession proceedings must be justified.

CPR 21 wouldn’t necessarily be engaged. Obviously one would have to consider each case on its own facts, but I’ve had plenty of clients who have been severely depressed, such as to bring them inside the scope of the DDA, but who were capable of giving instructions.

I don’t think you can limit s.24(3)(b) to the ss.22(1)(2) and (4) grounds though. The phrase “in any case” in s.24(3)(b) is very broad. If the draftsman had meant to limit the use of s.24(3)(b), (s)he would have had to have used a different form of words.

I do see the Richmond case as significant. I take your point that an able-bodied person would be unlikely to request the installation of a stairlift, but the freeholder in Richmond prohibited all works to the common parts. Stairlifts / installation of art works / notice board / more lighting etc. An able-bodied person might well have asked for some such installation and they too would have been refused permission.It is that blanket refusal which constitutes the non-discrimination.

What frustrated me the most from the Malcolm case is that there seemed to be no recognition of the implications of the decision, and these very issues were – seemingly – not raised. The report suggests that some truly bizarre arguments were advanced (such as the DDA not applying once security of tenure had been lost). I just hope that their Lordships are able to make a better go of it, although I suspect that we’re going to get another Brent LBC v Burrows.