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.