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.