There are a couple of articles in the latest Journal of Housing Law (Vol 11, issue 1 2008) on Malcolm v London Borough of Lewisham and the effect of the Disability Discrimination Act 1995 on possession orders. I’d say the articles are of varying interest. (My previous posts on Malcolm v Lewisham are here and here)
At the lesser end of the spectrum, Simon Braun contributes a cry of anguish over the supposed impotence of landlords in the face of Malcolm. The article repeats the idees recu that ‘the consequences of the DDA are to give total immunity to the tenant’ and that the link between disability and breach of tenancy ‘need only be very casual’. I’ve said this before and, until proven wrong, I may well say it again, but neither the immunity nor the casualness of the link are the case. Granted, ‘related’ is a lesser hurdle than ‘causal’, but it is not a negligible requirement either. A wheelchair user facing a possession claim for rent arrears? A visually impaired person illegally sub-letting? A person suffering from schizophrenia facing possession for under-occupation? Why would the DDA prevent possession orders in these cases? Further, we have yet to see whether Manchester CC v Romano [2004] EWCA Civ 834 or Malcolm is favoured in possession claims where the Court has discretion.
Breach of DDA as a factor in reasonableness is quite different to simple unlawfulness of a possession order, as Justin Bates points out in the considerably more interesting second article.
Justin Bates of Arden Chambers gives an overview of Manchester CC v Romano and Malcolm with which I largely agree (not least because I had come to some similar conclusions at the time of the judgment in Malcolm) and then turns to the consistency between Romano and Malcolm and the odd effects of Malcolm, for instance that the outcome might have been different had Lewisham proceeded via Notice Seeking Possession for breach of Ground 1 HA 1985, rather than relying on end of secure tenancy by operation of law and Notice to Quit, as this would likely have followed Romano.
Neither Romano nor Malcolm fully addressed justification under the DDA 1995, Justin suggests. S 24(3)(b) provides that discrimination may be justified if the disabled person is ‘incapable of entering into an enforceable agreement’ and arguably that was the case for both Romano and Malcolm as by their own cases they were incapable of being bound by their tenancy agreements. This is quite seductive, but I’m not sure it works.
The full s.24(3)(b) reads
“in any case, the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and for that reason the treatment is reasonable in that case;”
The issue is why incapacity to enter an enforceable agreement is the criterea. For an eviction, there is no entry into a contract at issue, as the tenancy agreement was entered into at some time in the past and capacity to enter that contract is not at stake.
It is at least strongly arguable that 24(3)(b) is limited in its reference to s.22(1)(2) and (4) – the sections that deal with disposal of premises to disabled people, i.e. entering an enforceable contract. The requirement is that the treatment be reasonable in that case, for this reason (lack of capacity), which must mean that the entry into a contract is the crux of the treatment. If this is not the case, s 24(3)(b) would mean that it would be justified to discriminate in a whole range of ways against those lacking capacity at this time, because it is reasonable in some undefined way to do so, offering a potential blanket justification for discrimination against the mentally ill (or otherwise incapable). As s 24(3)(a) is quite specific by comparison, this seems unlikely.
In any case, if this were entered as a justification, one would expect the claimant to have complied with CPR Rule 21 on litigation friends.
Justin Bates then turns to establishing discrimination. He cites Richmond Court (Swansea) v Williams [2006] EWCA Civ 1719, which held that, because the freeholder would have refused any tenant permission to install a stair lift regardless of disability, there was no discrimination against the disabled appellant leaseholder in refusing her permission. Justin suggests that the Court overlooked the significance of Richmond. If Richmond had been followed, because an NTQ would have been served by Lewisham on any tenant who parted with possession, there was arguably no discrimination against Mr Malcolm.
I can’t follow this line of argument. I don’t think it is that the Court overlooks the significance of Richmond. It is rather that this is no longer the means of establishing discrimination. I say this despite Richmond post-dating the Court of Appeal judgment in Clark v Novacold Limited that is key here.
It is not simply a matter of comparing the treatment of a disabled person to the treatment of an able bodied person. Indeed the Richmond example shows something of why. It is unlikely that an able bodied person would seek to install a stair lift, such that a blanket refusal is not non-discrimination but rather indirect discrimination.
The judgment in Malcolm deals with this at some length at paras 96-104. At para 100 in Malcolm, Lady Justice Arden adopts the approach of Clark v Novacold Limited in employment law, by which the Court considers itself bound, and states:
It follows from the example of the guide dog that it does not matter that Lewisham would have treated every tenant who sublet in the same way, even if the tenant had no disability.
The example of the guide dog being, in my view, exactly comparable to the approach in Richmond as Justin sets it out. (Granted, I have trouble imagining how the Novacold approach would have worked in Richmond.)
There certainly are many issues left over from Malcolm, not least concerning its compatibility with Romano and which should now be preferred in the case of a secure tenancy. I do wonder though, whether the primary issue is between perceived practicality and a strict interpretation of statute through the lens of established employment case law. For instance, in terms of statute, I think that unlawfulness of a possession order makes much more sense that a fudged incorporation of discrimination into a HA 1985 or 1988 consideration of reasonableness. The latter somehow smuggles in an amendment of the Housing Acts, which cannot be the case.
Malcolm is headed to the Lords and frankly, I don’t think anyone expects the Lords to leave it alone, so there is no doubt more to come. As Romano/Malcolm is key to a case I’m currently running, I’m watching with bated (sorry) breath.