Malcolm in brief

LB Lewisham v Malcolm [2008] UKHL 43

Court of Appeal thoroughly and unanimously overturned.

The reason for the treatment is the reason in the mind of the landlord, or one which can be imputed to them. So the landlord must be aware or be imputed to be aware of the disability, and the reason for the treatment in the landlord’s mind must be related to the disability.

Clark v Novacold mostly disapproved. The Court has some problems with the comparator issue, but mostly settles for the comparator for less favourable treatment being someone who has done the same thing but is not disabled (Thus, in Malcolm, someone who has illegally sub-let). Marvellous passage on the blind man and guide dog hypothetical at 35.

Baroness Hale alone disagrees, holding that the Novacold interpretation was what Parliament intended and approves Novacold for that reason. But she also finds that the landlord must or ought to have known of the disability and that knowledge to be a reason for the treatment.

Baroness Hale also argues for the introduction of a discretion on granting possession orders where there is apparent unlawful discrimination, balancing occupier and landlord interests.

Mandatory/unanswerable possession procedures can still have a DDA ‘defence’, it appears, but discrimination must be established as above.

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 , .

10 Comments

  1. This has wider implications than merely in housing law since Novacold has been an important case in employment law. My view is that the house of lords got the discrimination law wrong — I don’t think they really understand it — but on strict Novacold principles applied (via the DDA’s terrible drafting) to housing law, we would all have been in a fix.

  2. I agree on the wider implications – it clearly affects all disability discrimination, particularly employment.

    I tend to agree that they didn’t understand it, or rather that they did but were just too horrified by the results to let it stand. Baroness Hale is the only one who takes a really considered look at the Novacold comparator issue and she upholds Novacold. Her suggestion on the reason for the discrimination – must be in the mind of the discriminator – would go some way to mitigating the dramatic effects on housing, even if it is awkward to combine with Novacold.
    But there we are.

  3. The result isn’t surprising given the arguments that were advanced for Mr Malcolm:
    (a) that a person who entered as a trespasser would be immune from suit if his entry or remaining on the property was attributable to his disability; [147]
    (b) that a landlord could not sue for a money judgment against someone whose rent arrears were related to the disability. [29], [146]

    There was no way on earth that the Lords could allow such a result.

    It does seem though that DDA ‘defences’ are now rather dead in the water and only the most obvious forms of discrimination (“I don’t rent to blind people”…) will be caught by the Act. Having said that, Parliament can always intervene if they see fit.

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  5. The problem is that the DDA itself was poorly thought through. The Lords’ decision about discrimination makes little sense in itself and completely emasculates the middle tier of disability discrimination (the less favourable treatment limb for a reason related to limb).

    The real problem is that in employment law the discrimination can be justified on broad grounds; in housing law the idiots that sit in parliament did not think to allow general justification hence the problem.

    I’ve been reading the arguments rather more carefully and they don’t make me feel any better. This is an odd example of bad (statute) law making a hard case.

    Some of what the Lords have said seems to totally ignorant its hard to believe. For example the argument that knowledge is necessary seems to be based on the idea that injury to feelings would not follow from a statutory tort without a need for a mental element, but that is precisely what happens in indirect discrimination law.

    My concern is that this decision will send shock waves through a lot of established discrimination law and potentially undermine a lot of well-understood principles in employment law, possibly not just in the field of disability discrimination.

    If only the Lords had followed the clear logic of the act: Parliament would have been forced to do some snap legislating to get it right. This way, many of us are in a mess.

  6. Francis – I still haven’t had time for a detailed read through, but from my quick look, my impression is the same. The Lords seem to start from the result and work backwards, with exceptions. It may be a badly thought through act, but it is not the Lords’ place to mitigate the effects by dismissing its terms. But I want to have a proper go at it this weekend.

  7. As noted they appear so completely wrong it is difficult to know where to start. The extreme effects in property law cd have been avoided by wide justification. If anything wide justification is more appropriate to property than employment law. In employment law is there not some incompatibility with the EU directive anyway? The result here is so bad as to emasculate the discrimination legislation and I wonder whether it may be challenged in Europe?

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  9. I am still finding it hard to write coherently about this decision, I am so shocked by it.

    One clear difficulty is that it is very hard to see how Lord Scott’s formulation of “a reason which relates to the disabled person’s disability” can stand without conflating section 3A(1) ad 3A(5) of the act in the employment field. That is, Lord Scott has collapsed all the forms of discrimination under the act (other than a failure to make reasonable adjustments) into direct discrimination.

    Now that distinction does not (as I understand it) apply to the letting of premises, but one would hope that the definition of discrimination functioned in the same way throughout the act.

    The better way to understand the /reason related to/ style of discrimination is as a form of indirect discrimination. Clark v Novacold then makes perfect sense. No mental element is needed — there would be no expectation of one — and the notion of a comparator is slightly altered (though not made useless). The Lords do not seem to have understood this (maybe they aren’t aware of the changes made by the Disability Discrimination Act 1995 (Amendment) Regulations 2003) which explains some of their bafflement.

    However there was clearly a problem. The justification conditions in s.24(3) were always too narrow (indirect discrimination always requires a widely drawn possibility of justification) and specific. What the Lords have done is to avoid this problem by causing havoc with another part of the law (employment).

    While landlords ought to be breathing a sigh of relief, the difficulties with s.24(3) have not really been properly resolved.

    There is also a difficulty, namely that Malcolm’s disapproval of Clark v Novacold appears (to me) to leave the DDA 1995 failing to comply with Council Directive 2000/78/EC in the field of employment. If that position is overruled by the ECJ, then we may be left with the unsatisfactory position of having to understand discrimination described in the same words in the act in more than one way depending on the context.

    This is not (entirely) new, but it is unsatisfactory nonetheless.

    Part of the fault here is with the House of Lords’s institutional failure to properly research the law that they were dealing with. As the highest court in the UK and one that determines fundamental questions of law, it is no excuse for them to rely entirely on what counsel present to them. In this case they, or their researchers, ought to have done a better job. Justice is not served by sloppy judgments like this.

    Of course, had the result been otherwise, there would have been total chaos in landlord and tenant law, but a competent court can make it clear that it is breaking logic for policy reasons (something that has happened before under the DDA, eg the court of appeal’s decision in Collins where two justification provisions in identical terms were held to have quite different effects).

    Ultimately it is the government who are at fault (again) for failing to get this legislation drafted right. We still need a better drafted section 24, even despite this decision. Sadly its not the sort of thing to garner votes.

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