Anyway, for anyone who is interested there is now a consultation on ‘Improving Protection from Disability Discrimination’. It is available at http://www.officefordisability.gov.uk/docs/indirect-discrimination.pdf. The consultation period has been cut down and will run until 6th January. While the desire to move to amend the situation quickly is to be applauded, it of course increases the risk that any replacement legislation is likely to be flawed in its own way.

The Lords were faced with an awkward situation applying the DDA to landlord and tenant law; I am sure they felt forced to come to the solution they did. That does not excuse the profound ignorance of their legal approach which showed little understanding (and in some cases even knowledge) of the statute that had been put before them.

This is (roughly) what I have been saying from the start.

In disability discrimination, when comparing two people whose relevant circumstances are the same, except that one has a disability that is somehow related to the discriminatory treatment, I believe that the disadvantage of the disability on the person who has it needs to be accounted for. Treating two people the same does not necessarily means fair treatment. I believe the aim of ensuring that one person is not treated less favourably than another is for there to be fairness. If a person is refused entry into a restaurant because they have a dog with them, if this person depends on this dog for their independence in life compared to another person whose relevant circumstances are the same except that they do not depend on a dog for their independence, then this treatment, although the same, would be less favourable, that is less fair, towards the person who depends on the dog than the person who doesn’t. I.e a blind person who is dependent on a guide dog compared to a person who has a dog they are not dependent on. The treatment has a greater adverse affect on the disabled person than the non disabled person.

In the situation you describe though, there is an issue of failure to make reasonable adaptations, which is still viable.

1) The disabled person’s impairment is tunnel vision.
2) The disabled person’s disability is their dependence on a dog for orientation and mobility to and from the restaurant.
3) The treatment is refusal of entry into restaurant.
4) The reason for treatment is the Disabled person has a dog with them.
5) How is the reason relating to the Disabled Person’s disability? The Disabled person has a dog with them *because* the Disabled person is dependent on the dog for orientation and mobility to and from the restaurant.
6) The others to whom the reason does not or would not apply are others to whom the reason does not relate to the disability that Disabled person has. That is, the others do not have a dog with them *because* they do not depend on a dog for orientation and mobility to and from the restaurant.
7) The others would be treated differently because the reason does or would not apply. That is, the others would have been allowed entry because they do not have a dog. Is the Disabled Person treated less favourably than the others? Yes, because they were refused entry, while the others were or would have been allowed entry.
9) Is the treatment justified? – Yet to be determined.

I believe this is consistent with the House of Lords ruling because the comparator test is with others who do not have the Disabled person’s disability, i.e the others do not depend on a dog for orientation and mobility to and from the restaurant. This is because disability does not have the same meaning as impairment.

I really hope this sorts out the mess that the Lords have made in employment law but time will tell.

As far as my two-bob’s worth goes on the final outcome of Malcolm, I think it was a wholly sensible decision.

Tail-eating-serpent legal arguments aside, the real-world facts are that Mr Malcolm sub-let his council flat for a profit, then submitted a right-to-buy application, and then shoo’d the sub-tenants on their way when the heat was on, whilst all the while maintaining a few benefits claims.

Maybe you can’t blame the bloke for trying, but whatever happened to “fair-cop” culture?

Surely even the well-meaning NL bloggers so outraged by the Lords’logic could not possibly believe that Mr M should’ve been allowed the benefit of state-sponsored social housing after such a calculated exercise.

If any wider damage has been done by this decision then don’t Malcolm’s advisors carry some of the blame? Were his solicitors so suckered as to believe they had a runner here? Or were they in it for some other reason?

There’s the cat – look forward to the pigeon feathers.