Mayor and Burgesses of the London Borough of Lewisham (Appellants) v Malcolm (Respondent), [2008] UKHL 43

Wed, 25 Jun 2008 12:34:00 GMT

This appeal raises difficult questions as to the correct construction or application of provisions of the Disability Discrimination Act 1995 (“DDA”).

The respondent, Mr Malcolm, suffers from schizophrenia. He has had the condition for some time and takes medication for it. For a short time, he did not take his medication and during that time he sub-let the flat that he occupied under a secure tenancy from the appellant Council. The effect of the sub-letting, and his consequent relinquishing of his occupation of the flat, was that his secure tenancy became an ordinary contractual tenancy without any security of tenure. It was a term of his tenancy that sub-letting was prohibited. At the time of the sub-letting Mr Malcolm had been actively engaged in pursuing the Right to Buy. However, this statutory right, along with the security of tenure that accompanies a secure tenancy, was lost by the sub-letting and in July 2004 the Council served on him a four weeks notice determining the contractual tenancy. Mr Malcolm did not deliver up possession of the flat and in November 2004 the Council commenced possession proceedings against him and the sub-tenants who were then in occupation. The sub-tenants subsequently vacated the flat, Mr Malcolm moved back into occupation and the possession proceedings have continued against Mr Malcolm alone.

Mr Malcolm argued that (1) any breach of the terms of the tenancy had been caused by his schizophrenic condition; (2) his schizophrenic illness constituted a disability for the purposes of the DDA; (3) “the reason why the claimant is seeking possession is because of the … disability”; and (4) the Court was precluded by the DDA from making any order for possession against him.

Mr Malcolm relied upon ss.22 and 24 in Part II of the DDA and was unsuccessful at first instance but successful before the Court of Appeal. The Council appealed to the House of Lords.

The House of Lords held (unanimously) that Mr Malcolm had been disabled at the relevant time. However, they went on to hold that there had been no unlawful discrimination against him because there was no evidence that the Council knew about his disability.

What the House of Lords failed to reach agreement on (Baroness Hale dissenting) was the correct comparator to be used in disability discrimination cases. The majority held that Mr Malcolm should be compared to an able-bodied man who had sub-let his flat. Baroness Hale argued that the comparator should be an able-bodied man who had not sub-let.

In coming to their decision, the four Law Lords in the majority accepted that their verdict would restrict the scope of disability discrimination legislation to direct discrimination. Baroness Hale believed that in reaching her conclusion, she was faithfully following the intention of Parliament.

The appeal was allowed and the judge’s order reinstated.