This post started as a response to a detailed comment by David Giles, Counsel for Floyd in S V Floyd, on my case report. But his comment and the report by Michael Paget mentioned in my last post – to the effect that Floyd contained a clear rejection of the very idea of a DDA ‘defence’ rather than compensation claim – have sent me back to have another look at S v Floyd. I recommend a look at David Giles’ comment, then reading this post (which is rather hurried and may well be edited over the next day or two)…
David, I agree that Malcolm was distinguishable from Floyd on the non-relation of disability to non-payment of rent point. That by itself would not mark a breach with Malcolm.
I think the distinction made between a statutory mandatory claim and the ‘contractual’ (actually common law – thanks J) claim in Malcolm doesn’t stand up, because if the suggestions in the Floyd judgment were carried through, it would make no difference – both would be lawful possession claims with no DDA ‘defence’.
I noted the scepticism to the idea of a DDA ‘defence’ at 48. and meant to comment on it in my original post. But as I did say in that post, I think that the Court has got rather confused about the very idea of a ‘defence’.
The judgment in Floyd does not put forward an argument that gets around s.22(3)(c) DDA 1995. If the eviction is unlawful by reason of being unjustified discrimination, what does the Court suggest? The implication of 48. would be a claim for compensation. So, the County Court is to aid an unlawful act by making the possession order, but it is OK because the ex-tenant then has a claim for compensation? This makes no sense.
The objection appears to be that an otherwise lawful possession claim cannot become unlawful by operation of the DDA. But that is the point of the DDA in general – otherwise lawful acts are unlawful if they constitute disability discrimination.
It is hard to escape the logic of Malcolm, once it is acknowledged that an otherwise lawful possession claim can constitute ‘less favourable treatment for a reason related to disability’ in comparison to ‘others to whom the reason would not apply’, to paraphrase s.24(1)(a).
The Floyd judgment does approach this in 57 and 58, as you say, by reference to Taylor v OCS Group Ltd [2006] EWCA Civ 702. Taylor v OCS at 72 says:
“In the context of the DDA, an employer cannot discriminate against the employee unless he treats the disabled employee differently for a reason (present in his, the employer’s mind) which is related to the employee’s disability.”
This is a major difference to the interpretation of ‘for a reason’ set out by the Court of Appeal in Novacold. The judgment in OCS distinguishes Novacold by saying that the treatment in Novacold was clearly for a reason related to disability, so the judgment offers no aid on ‘reason related to…’. But this dismissal doesn’t actually stand up. If it did then the whole logic of the comparator set out in Novacold would make no sense at all, as it is based on an analyis of what the term ‘reason’ actually means, and it is not the meaning that is set out in OCS.
The stakes become clear at this point. It is not, in the end, about whether the DDA applies to mandatory possession claims. As far as I can see Floyd gives no reason at all why it would not – while not actually having to decide the issue in this case. The argument – or significant difference of position – is about the interpretation of ‘for a reason related to his disability’ tout court, pitting OCS against the line of Novacold judgments, including Malcolm and Romano, and affecting the entire application of the DDA.
But even if the OCS approach was right, and I’m sure the House of Lords will hear it in Malcolm shortly, that would not stop the DDA having potential application in mandatory possession claims. For example, what of a s.21 possession that could be shown to have been undertaken because the landlord did not want a disabled person to remain in the property? Is the only recourse of the ex-tenant to be to a claim for compensation, while the County Court aids an unlawful act?
Defence or counter claim or pointing the court to a possible unlawful act or all 3! I guess it’s hard to actually sum up what is happening in these cases into a neat little word such as ‘defence’ as it doesn’t seem to me (being a lay person) that the Court knows exactly what is being ‘defended’. See I don’t even want to use ‘defended’ but I don’t know what else to say!
Call me cynical and a bad lawyer but I think that the only way to make sense of the approach of the Court of Appeal in Floyd as compared to the approach of a differently constituted Court of Appeal in Malcolm is to analyse the cases politically rather than legally.
If you step back from the legal minutiae I think that what we have in Floyd is the Court of Appeal making a political point that the application of the Disability Discrimination Act to possession proceedings is in danger of preventing landlords from evicting disabled tenants at all unless they were a danger to their neighbours. Floyd represents something of a “they shall not pass” moment if housing law as we know it was to be preserved. If a private landlord was to be denied a Possession Order where her tenant had admitted that a mandatory ground for possession had been made out because the tenant suffered from an Obsessive Compulsive Personality Disorder then no landlord was safe. Any claim for possession could be defeated at the last minute by an advisor raising concerns about the tenant’s health. I think the Court of Appeal knew that whatever they decided in this case was largely immaterial given that the House of Lords will hopefully be providing clarification of this area of law shortly after hearing the appeal in Malcolm. They therefore used this case as an opportunity to let of steam rather than provide guidance.
David Giles states that the Court came close to expressing their scepticism about the whole notion of the DDA being deployed to prevent landlords from enforcing their statutory/contractual rights. I would go further and say that the Court’s considerable irritation is expressed very clearly perhaps not to the point of using those actual words but certainly past the point where the message is loud and clear. The reference to the case of Bernstein v Tate at para 73 has a Richard Littlejohn type “You couldn’t make it up!” ring to it. The extent to which landlords are to be prevented from enforcing their statutory/contractual rights is a political question. I don’t mean party political but political in that it concerns the competing rights of citizens. Where you come down on where and when the rights of landlords to evict should take priority over the rights of disabled people to remain in their homes is a political decision.
I have (quickly) given up trying to make sense of the legal arguments which distinguish these cases. Like housinganger I start to feel my brain hurting at the thought of going back to read Malcolm again to try to make sense of the arguments in and about Floyd. It does not seem worth it right now when the House of Lords will hopefully be setting us all straight. In practice I am finding in my own case work that County Court Judges are adjourning DDA type possession cases until after the House of Lords Judgment in Malcolm has been given.
William, I couldn’t agree more. What I was wrestling with was, in effect, the absence of legal argument to support what was clearly a political (small p) view by the Court in Floyd.
Mummery LJ was particularly irritated by the submission in S v Floyd that fundamentally the DDA provided a special defence to a mandatory ground possession claim. One cause of his irritation was Novocold, an employment law case where the employee brought a claim against his former employer who had dismissed him, was being applied in support of the argument that, regardless of the landlord’s lack of knowledge, if the disabled tenant could establish a relationship between his disability and the landlord’s treatment, prima facie there was unlawful discrimination. That said, Novocold says what is says, so now that the CA has accepted that as a matter of principle the DDA creates a defence, it is a small step, applying Novocold, to find that arguably the reason for the treatment was disability related. A disabled occupier could, if so inclined, resist a possession claim or forfeiture proceedings by asserting a relationship between, disability and the legal proceedings or forfeiture. We have seen that possession claims on mandatory grounds are being adjourned for trial on the issue. Some may agree with that happening, others may think that it is an absurdity and unfair on landlords who are simply following due process.
On the justification and rent arrears issue raised by William, where the rent arrears have accrued because of the tenant’s disability,the landlord (i.e. the discriminator) may have to justify the treatment (i.e the notice seeking possession/possession proceedings) by showing that he reasonably believed his (the landlord’s) health or safety might be endangered unless he treated the tenant in that way. If not, if Malcolm has application to statutory mandatory ground 8, the claim for possession will be dismissed. Whether the court would also dismiss the claim for a money judgement for the rent arrears I know not. Interestingly, the EHRC stance on that point is that landlords of disabled tenants will have to find different ways to manange tenant’s rent arrears which are disability related. Quite what those different ways are, is unclear.
David,
I agree with this outline completely. What I was trying to unpick was the ways in which the Court of Appeal in Floyd was trying to advance arguments other than those of Malcolm, and expressing scepticism as to the application to mandatory claims, but couldn’t actually reach that position (or perhaps didn’t have to because of the finding that there was no relation) without going absolutely head to head with Malcolm.
Taking OCS over Novacold would, for instance, limit the application of the DDA to cases where a landlord’s treatment was for a reason (in his mind) related to the tenant’s disability, I agree, but I cannot see in what way it would not still apply to mandatory possessions, Mummery LJ’s irritation regardless.
So, we will have to wait for the Lords in Malcolm and hope that something clear results from that.