Disability and tenancy – More on Malcolm

I posted on Lewisham v Malcolm ten days ago. Since then a couple of commentors have raised issues and Tessa has posted on the implications of the case at Landlord Law. So it seemed worth a further look. The caveat is that what follows is my understanding of the Judgment and so is entirely capable of being wrong.

Tessa’s post makes some suggestions that I don’t think I agree with in terms of the Judgment. Tessa says:

The Judge refers in paragraph 52 to two County Court decisions, one of being a case where a Judge refused to make an order under s21 where the tenant was disabled, as examples of courts happily adapting to the DDA 95 without difficulty.

The thought of landlords being unable to evict tenants under section 21 because of the DDA will send a shiver down the spine of all private landlords, and may well result in a private determination not to knowingly let to any disabled tenant in future. This will do nothing to help the prospects of the disabled (particularly those suffering from mental illness) obtaining accommodation in the private sector.

Firstly, the reference at para 52 is to two examples put forward by Counsel for Mr Malcolm as examples of the Court’s adopting the DDA “without insuperable difficulty”. Lady Justice Harman does not criticise this assertion, but does not adopt it either.

Secondly, and more importantly, we are not given details of the s.21 case, Community Housing Association v Wye. However, I can only conceive of such a verdict being reached in a particular way.

I think that Malcolm is clear that the operation of the DDA is distinct and does not amend Housing Act 1985. By extension, neither will it amend Housing Act 1988. So it is not the case that there is suddenly a defence to a s.21 Possession claim within the terms of HA 1988. It is not the case that the Courts suddenly have the power to consider reasonableness, or to require additional grounds for possession to be met.

However, where an eviction is sought ‘for reasons related to the tenant’s disability’, then the DDA is engaged and a defence not to the possession claim, but to the lawfulness of bringing the claim is possible. S.21 Possession claims do not require grounds, so I can only imagine that the tenant was able to adduce sufficient evidence that the landlord was seeking his/her eviction for reasons related to his/her disability, without justification. This is independent of the kind of possession proceedings brought (s.21, s.8 or whatever). Thus the s.21 claim would be unlawful. Granted, this is applying the logic of Malcolm to a prior case, but even so it seems likely.

In my opinion, this is not an unwarranted interference with the private landlord’s freedom to gain possession under s.21. This is exactly the kind of discriminatory behaviour the DDA was aimed at.

As far as I can see, this is NOT a general prohibition on possession claims against and eviction of disabled tenants. It is not an interference with s.21. It is a defence of unlawfulness where the s.21 claim has been made for reasons related to the tenant’s disability.

Having said that, I completely agree with Tessa that if landlords do get the wrong idea and stop letting to disabled people, that would be a Bad Thing. This is also the kind of thing that myths quickly grow up about, so clarity about the effect of the DDA is vital.

A commentor on my previous posted asked simply, either in hope or fear, whether this meant disabled tenants with rent arrears couldn’t be evicted. The above contains the answer, which is no, depending.

William Flack commented on the previous post about the position that Mr Malcolm was left in by the Judgment, as his tenancy was not revived. LJ Arden addresses this at para 121 and 122. As the DDA defence does not override HA 1985, it remains the case that Mr Malcolm’s secure tenancy ended with the illegal sublet. As LJ Arden notes, whether he then has a contractual tenancy depends on whether the Notice to Quit was unlawful as well as the Claim for Possession. If it was unlawful, he likely has a contractual periodic tenancy, if it was not, he is likely to be a tolerated trespasser.

But I can’t quite see how an application for revival of tenancy could be made. There is no possession order to vary, no proceedings within which a s.85 application can be made.

As the DDA s.22(3)(C) refers solely to eviction, not the determination of tenancy, and as the Court of Appeal was divided over the lawfulness of the Notice to Quit (on grounds of whether knowledge of disability was required by the landlord for the act to be unlawful), Mr Malcolm’s status is unclear and likely to remain so. If the possession case had been about breach of the tenancy agreement or any other ground other than statutory determination of the secure tenancy under HA 1985, the position would be much clearer and simpler.

That turned out to be longer than I thought it would be. I’d better be right, after all that.

About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in Housing law - All, Possession and tagged , , , , .

21 Comments

  1. I am not saying that this case is authority for private landlords being unable to evict disabled tenants under s21 per se. We will have to wait and see where future cases take this legislation.

    However in an article in the September issue of LAG, the authors commented “Malcolm has major implications for any eviction proceedings involving disabled people, regardless of whether the landlord is a local housing authority, registered social landlord or private individual“. So it looks as if they consider that a successful defence against a private landlord under the DDA is a definite possible.

    Hopefully a DDA defence will only be accepted, in the context of private landlords, in circumstances where the landlord was fully aware of the disability and acted in a way which was clearly discriminatory. Otherwise I can see private landlords refusing to take disabled people (particularly those with mental problems) as tenants. They may start doing this anyway. They will not want to become involved in contested evictions – even if they eventually win, it will have been a costly and time consuming exercise, best avoided.

    (I have also put this comment on my blog entry)

  2. Tessa,

    Absolutely the DDA applies for private landlords, that wasn’t quite what I was suggesting.

    As far as I can see, for the DDA defence to be raised against an s.21, the tenant would have to be able to adduce sufficient evidence to show that the claim was brought for a reason related to the disability. So the initial burden will be on the tenant. In that situation, I would think that the landlord’s awareness would be required, if not technically, then just to establish the defence in practice. It isn’t going to be the easiest defence, for sure and the landlord still has the defence of justification.

    I’m not sure about ‘clearly’ discriminatory, just discriminatory should do, surely.

    Landlords refusing to take disabled people would be dreadful. If fear of a contested eviction will do that, then it should be clear to landlords that the DDA applies in specific circumstances – that if they attempt to use s.21 to cover an eviction of a tenant for a reason related to their disability, there is a defence and they may have to be prepared to justify their actions.

    (Also added to your blog)

  3. I am counsel for a private landlord who sought and obtained possession relying on madatory ground 8 under the HA 1988. The tenant’s appeal to the court of appeal is pending. One of his arguments is that there was a causal relationaship between the rent arrears and his alleged disability.
    I will not go into the details of the case, but one interesting side issue relates to the landlord’s money claim for the unpaid rent.
    It seems to me that if Malcolm is correctly decided, and I understand that the council are considering an appeal to the House of Lords, it will (arguably) be unlawful for a landlord to commence a claim for a money judgement for unpaid rent where the rent arreas accrued as a consequence of the tenant’s disablity, unless the landlord can justify the treatment. The reason why such a claim would be unlawful is because it would be subjecting the disabled tennant to a detriment contrary to section S22(3)(c).

  4. David,

    Is your opponent going for a causal relationship? Malcolm may make their task easier by only requiring a relationship, not necessarily a directly causal one.

    Very interesting on the money claim. I could certainly see a money claim as part of a Ground 8 possession claim falling under DDA s.22(3)(c). I hadn’t thought about a freestanding money claim for rent arrears falling under s.22(3)(c) as a detriment.

    I could see a counter-argument that a claim solely for money contractually owed doesn’t constitute a detriment and/or is not discriminatory under s24(1)(a) as the money would be owed regardless of whether or not there was a relationship between the disability and the accrual of the arrears.

    The mention of eviction specifically in s.22(3)(c) perhaps makes matters different for possession claims, even if based on the same rent arrears.

  5. Fair point on the causal relationship point.
    The application of Malcolm to mandatory ground 8 would be of great concern to private landlords. We shall have to wait for the court of appeal’s decision in the pending appeal. The difficulty would be that a private landlord with a disabled tenant who is not paying rent for a disability related reason would be prevented from claiming possession (and possibly also from suing for the unpaid rent), unless he could justify the otherwise unlawful treatment of seeking a possession order (and possibly commencing the money claim). Jusification entails proving that treatment is neccessary in order not to endanger someones health or safety. It is not easy to see how a private landlord could establish justification.

  6. But isn’t this the point? The DDA, thanks to s.22(3)(c) applies to eviction tout court, regardless of whether the proceedings are HA 1985 or HA 1988 or any other. As a ‘defence’ it is not a defence to the claim, but that the claim per se is unlawful. It will certainly apply to s.8/ground 8 claims, I would have thought.

    But the difficulty is not wholly the landlord’s. In mandatory proceedings, the tenant will have to establish, at the very least, a relation between the reason for the eviction/possession proceedings and their disability at the first for the defence to have a chance. Like a public law defence in possession proceedings, the burden is initially on the tenant.

    Granted, justification is difficult, endangerment or incapable of entering an enforceable agreement (s.24(3)(b)).

    However, I strongly suspect that, a very little way down the line, if the defence wasn’t raised at first instance County Court proceedings, the higher courts will not be interested on appeal.

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  9. Sorry for posting on the earlier thread.

    There are, to my mind, a number of significant problems with the Malcolm decision.

    Firstly, Malcolm expressly approved Romano and said that in cases involving judicial discretion, any unlawful discrimination could be dealt with within the reasonableness test.

    Given that most secure (and RSL assured) tenancies have a clause requiring the tenant to obtain consent before subletting (effectively mirroring s.93 HA 1985), a tenant who acts as Mr Malcolm did, could be served with an NSP which relies on Ground 1 (breach of tenancy condition). Given that Ground 1 is discretionary, the court would follow Romano, rather than Malcolm.

    Secondly, Romano does not require the landlord to show a justification within the meaning of s.24 DDA 1995 (albeit Manchester could do so in that case). Malcolm recognised this, although it was doubted whether or not it could ever be reasonable to make a possession order against someone where there had been unlawful (and unjustified) discrimination.

    Thirdly, Malcolm and Romano cannot stand together. Malcolm is clear that the unlawful discrimination is not something the court should be a party to and that unlawful discrimination must result in the claim for possession being dismissed. If that is right, why does the same logic not apply to Romano? Judicial discretion surely cannot be used to overcome (or overlook) the discrimination? The distinction between the two cases is very difficult to maintain.

    One falls back to the concluding paragraphs of Romano itself – the DDA is a poorly drafted piece of legislation which would have benefited from the input of the Law Commission and detailed consultation. At the moment, all it is doing is encouraging another trip to the Court of Appeal.

  10. J,

    Thanks for this – very interesting. I’ve been just been considering some of the same issues, as a possession case with a DDA defence has just dropped into my lap. This is an ex-secure tenancy, so arguably Romano rather than Malcolm. But I think I agree with you on the incompatibility of the two cases, particularly on your third point, and that the logic of Malcolm has to supersede that of Romano – the court cannot be a party to an unlawful act, so unlawfulness under DDA cannot be a factor in reasonableness.

    That said, the suggestion at paras 63 & 64 of Romano is that a consideration of discrimination under reasonableness would simply be to avoid the ‘formalistic’ necessity of a counterclaim for declaration and/or injunction. As such a counterclaim would be precisely on the basis of the unlawfulness of the claim, it would appear that the Court in Romano was looking purely at administrative efficiency rather than making discrimination ‘just’ another factor in reasonableness.

    It appears to be on this basis that Malcolm approved Romano. The logic being that where discrimination without justification is made out, (so where a counterclaim for declaration/injunction would succeed) it will be impossible for it to be reasonable to give possession.

    Granted, the Romano format gives rise to potential confusion, in particular over the exercise of the court’s discretion. It also means that the possession claim would apparently result in a possession order being refused as not reasonable, rather than dismissed as not lawful, which is quite different.

    I think we will probably just plead unlawful under the DDA, push Malcolm, and see if the Court and Council pick up on the Romano/Malcolm issue, but I hate to think what a DJ might make of it.

  11. LONDON BOROUGH OF LEWISHAM v MALCOLM (Disability Rights Commission intervening) [2007] EWCA Civ 763]

    There are issues of public importance in relation to this case for it addresses matters which amount to organised oppression and inequity in the social housing sector perpetrated by a local authority.

    How can the Housing Act of 1985 and the Housing Act of 1988 which has been interpreted by landlords and the courts as giving landlords mandatory grounds in law to physically evict tenants from their homes onto the street irrespective of disability and purport to circumvent the following:

    (i) The Universal Declaration of Human Rights (1948), article 17(1) “everyone has the right to own property alone or in association with others”.

    (ii) The Universal Declaration of Human Rights (1948), Article 17(2) “no one shall be arbitrarily deprived of his property”.

    (iii) The Disability Discrimination Act 1995 (unlawfulness of evicting disabled tenants)

    (iv) The Human Rights Act 1998 (right to a home)

    (v) Article 8 of the European Convention of Human Rights (right to property)

    (vi) The Unfair Terms in Consumer Contract Regulations 1999 (where social housing tenancy agreements were included in 2004 by the Court of Appeal)

    (vii) The prohibition of discrimination under Directive 2000/43/EC (social housing included)

    (viii) The Mental Incapacity Act 2005

    (ix) The Vulnerable Adults Act 2006

    Intention to Permanently house persons in a criteria of vulnerability

    The genesis of a local authorities’ and a housing association’s intention of permanently housing disabled and vulnerable groups are such that as a housing provider, the local authority was/is aware [fixed with knowledge] that the person who is permanently housed is vulnerable and/or disabled and/or on no or low income.

    (i) Therefore awareness of social problems binds responsibility on the social housing provider.

    (ii) That the social landlord’s invitation of permanently housing persons of vulnerability and/or disability and/or of other related social problems inherently attract social consequences in that by knowingly housing vulnerable persons, a landlord cannot divorce himself of the social problems and/or any social consequences accrued through the permanent housing of vulnerable groups by evicting vulnerable people from their homes onto the street like dogs in an effort of the social housing provider to rid itself of the burden brought by housing individuals of necessitous circumstances in the first instance.

    (iii) That; it would be duplicitous conduct for a social housing provider to divorce itself of social consequences that generate from the needs of vulnerable people and their evidential lack of money and resources which are the core foundations of permanently housing persons in necessitous circumstances from the outset.

    The Landlord’s social responsibility for housing vulnerable people in Social housing is bound by the landlord’s knowledge of disability in the first instance and the landlord must meet with social consequences imposed upon the landlord. Those social consequences accrue from the constellation of needs of vulnerable people housed in social housing and these needs bind responsibility on the social landlord.

    Social landlords providing social housing to social tenants attract social consequences.

    There can be no escape for the landlord and his liability and/or responsibility exists because the doctrine of strict liability and vicarious liability is a liability designed specifically and precisely for this kind of circumstance where a disabled tenant has needs which a landlord cannot ignore.

  12. Do private landlords providing privately rented housing to non social tenants attract social consequences to?

  13. Yes. Private landlords in the United Kingdom providing privately rented housing attract social consequences in the same way that social landlords do.

    The message is clear.

    “Don’t rent out houses to people if you don’t want to be burdened by the social consequences of people living in those houses to whom you rent out those houses to”.

    People are people.

    people are not property.

    People have intrinsic, individual and specific needs. Anyone who does not recognise this fact does not have a right to exist in business.

  14. K – I agree that Malcolm is an important decision. However, your understanding of the laws you list at i) to vii) (at least, can’t speak for vii) and ix)) is unfortunately mistaken. They don’t say or do what you want them to, I’m afraid.

  15. No I most certainly am not mistaken and my understanding of the law is correct.

    The provisions of the Disability Discrimination Act 1995 in relation to premises are set out crystal clearly.

    Take the DDA 1995 for example.

    ____________________________________
    Discrimination in relation to premises

    Premises Part III

    22.-(3) It is unlawful for a person managing any premises to discriminate against a disabled person occupying those premises –

    (a) in the way he permits the disabled person to make use of any benefits or facilities;

    (b) by refusing or deliberately omitting to permit the disabled person to make use of any benefits or facilities; or

    (c) by evicting the disabled person, or subjecting him to any other detriment.
    ________________________________________

    Therefore as you can see, the landlord is imposed upon by way of an ACT OF PARLIAMENT to adhere to the social consequences of permanently housing disabled people.

    A fortiori,

    26.-(1) Any term in a contract for the provision of goods, facilities or services or in any other agreement is void so far as it purports to –

    (a) Require a person to do anything which would contravene any provision of, or made under, this Part, [Part III of the DDA 1995]

    If a landlord seeks to evict a disabled person the clause in the tenancy agreement automatically becomnes void.

    The word Void as Void means Void. There is no derrogation to this rule.

  16. K, I’ve sent a response in email, because anyone who works with housing law knows where you have gone wrong in your interpretation, so there is no point in having a to and fro here.

  17. Nearly Legal: Thank you for your response.
    Right or wrong, the law is and will always be “an interpretation”. [One of the Judges at the European Court of Human Rights in Strasbourg once kindly made me aware of this].

    Section 26(1) of the Disability Discrimination Act 1995 sets out the following:

    “Any term in a contract for the provision of goods, facilities or services or in any other agreement is void so far as it purports to –

    (a) Require a person to do anything which would contravene any provision of, or made under, this Part,

    (b) Exclude or limit the operation of any provision of this Part, or

    (c) Prevent any person from making a claim under this Part.

    Please interpret that.

  18. The Vulnerable Adults Act 2006 where section 59 (5) (c) “any disability he has”.

    The Vulnerable Adults Act 2006 where section 59 (9) (b) asserts “he has any form of disability”

    The Vulnerable Adults Act 2006 where section 59 (9) (c) refers to “has a physical or mental problem”

  19. I was chatting to one of the counsel involved in the case earlier today. Apparently their Lordships made clear during the course of argument that they were very unimpressed with the judgment of Arden LJ. Judgment is expected before the end of the summer.

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