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.