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Catching up – Disability Discrimination and possession


Time for some substantive law at last. I missed this one while I was on holiday and have just had it brought to my attention.

LB Lewisham -v- Malcolm & Disability Rights Commission (Intervener) [2007] EWCA Civ 763. A very interesting case on the application of the Disability Discrimination Act 1995 to a possession case, well worth reading in full.

Of note:

i) Where a secure tenancy has been determined by a tenant’s action related to their disability, that determination persists as the DDA cannot rewrite the HA 1985.

ii) Where the action determining the secure tenancy is related to the disability, subsequent service of a Notice to Quit (majority decision) or alternatively pursuit of a possession claim by the landlord is unlawful. (Unless discrimination can be justified)

iii) The Court cannot make a possession order where the eviction would be unlawful under the DDA (majority) or in reliance on an unlawfully served Notice (minority)

iv) This is so regardless of actual knowledge of the disability by the landlord (a 2:1 majority decision)

v) Whether the determining action relates to the disability is a lesser test than causation

vi) Noted that the landlord’s advocate has a duty to the Court in possession proceedings against a disabled tenant to draw the Court’s attention to the fact that the act relied upon by the landlord is unlawful. This is so where the tenant has a defence under the DDA even where the tenant is not present/represented in Court.

vii) DDA s22(3)(c) does not only apply where the tenant has security of tenure. It applies to an occupier facing evcition regardless of status.

Lots to think about here.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


  1. Andrew Robinson

    Does this mean disabled tenants who do not pay their rent cannot be evicted?

  2. contact

    Short answer – No.

    Long answer – No, but there may be a defence if the reason for the non-payment of rent is related to the disability.

    It is still open for the landlord to plead justification in response to the defence, or the court to find that a possession order is reasonable in the circumstances (which this case LJ Arden suggests shuold be the same test). The discrimination has to be unlawful, and if it is justified, it is not unlawful. See para 54 of the judgment or para 59.

    I think that the above is right…

  3. William Flack

    Thank you for your post on this case and on the other areas of housing law. They are extremely useful. I followed your suggestion and read the judgment in full. I think that like Romano before it this is an extremely important judgment and has wide reaching implications for housing lawyers. I would expect for instance that it will be much harder for local authorities to find people intentionally homeless where it can be argued that they were suffering from a disability at the time when their act or omission occurred.

    I was disappointed that the Court of Appeal left Mr Malcolm as a tolerated trespasser. It is stated in the judgment that this is because those representing him did not raise the issue of reviving his tenancy which I suppose is fair enough. I would hope that he might succeed if he were to apply for the tenancy to be revived. If the Court of Appeal consider that he should not lose his home as a result of his disability I would have expected that he would not lose the status and rights which went with it.

  4. contact

    Mr Malcolm’s ongoing position is a grey area. I’ve done a follow up post on Lewisham v Malcolm, partly in response to Tessa Shepperson’s blog post, which looks at his position as well.

  5. J

    Re-reading this decision has got me thinking… did they actually leave him as a TT? Arden LJ and Longmore LJ both found that the service of the NTQ amounted to an act of discrimination and, accordingly, was void. If the NTQ was deemed not to be served, then couldn’t it be said that the contractual tenancy remains in force, albeit that it is a non-secure contractual tenancy?

    If the contractual tenancy remains in force then s.11 LTA 1985 will apply. Mr Malcolm “just” lost the benefits that come with a secure tenancy, such as the right to buy, succession, assignment / mutual exchange (since he’ll now fall outside the scope of Part VI HA 1996).

    Sorry to revisit this topic – I’ve only just discovered this blog and I’m working my way through it!

  6. Iqbal

    Why should tenants pay rent?

    It is the tenants who physically live in the property and not the landlord of the property.

    There must be a revolution to overthrow the ruling class of property owners by giving property and land dwellers more rights than the rights of land owners.

  7. Nearly Legal

    Iqbal: I could cite you marx on the rentier class from memory, but in the meantime I wouldn’t recommend withholding rent while waiting for the barricades to rise up.

  8. K

    Hmm. I agree with Iqbal. In comparison to the standards of living with the rest of Europe in respect to property and comfortable living, the standards of living in London are absolutely shit. People are shoved like animals into tiny, pokey flats full of damp and disrepair where there in not room to swing a cat in. For what should tenants pay rent? For living in shitty flats that are affecting their health? Martin



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  2. Disability and tenancy - More on Malcolm at Nearly Legal - [...] posted on Lewisham v Malcolm ten days ago. Since then a couple of commentors have raised issues and Tessa…

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