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?