Property Law – The Disability Discrimination Act defence in mandatory possession claims

By : Andrew Lane

Section 22(3)(c) of the Disability Discrimination Act 1995 (“DDA”) provides that it is unlawful for a person managing any premises to discriminate against a disabled person occupying those premises by evicting that person or subjecting him/her to other detriment. A person discriminates against a disabled person if, for a reason which relates to the disabled persons disability, they treat them less favourably than they treat or would treat others to whom that reason does not or would not apply, and cannot show that the treatment is “justified” (s.24(1)).

A possession action may be “justified” against a person disabled within the definition of the DDA if, amongst other specified reasons, the landlord reasonably believes that the action is necessary in order that the health or safety of any person, including the disabled person, is not endangered (s.24(2)(3)).   This is not usually a difficult “hurdle” in nuisance possession claims (evidence permitting) but problematic when it comes to grounds relating to matters such as rent arrears and subletting.
 
Lord Justice Brooke in Manchester City Council-v-Romano [2004] HLR 47(64) confirmed that though a tenant may seek a declaration and/or injunction in possession proceedings in reliance on these DDA provisions the preferable route in discretionary cases was to use it as a defence in arguing that it would not be reasonable to make the order.
 
That of course is fine where the ground for possession relied upon by the landlord is discretionary and an order cannot be made without the court finding it reasonable to do so, but what happens in cases where the court has no such discretion? 
 
The Court of Appeal in Romano recognised this issue but was not required to decide upon it (68). This was however the situation faced recently by the Court of Appeal in Lewisham LBC-v-Malcolm [2007] EWCA Civ 763 where the possession claim was brought on the basis of an (admitted) subletting of the whole of the demised premises. The landlord was not asserting that there was “justification” under the DDA (100), but rather that it did not apply.
 
The trial judge had also held that the DDA was not applicable, not only because she did not accept that the defendant had a disability (schizophrenia) for the purposes of the DDA but also because she found that it did not apply to cases where the security of tenure had already been lost (by reason of the subletting) and in any event that the defendant’s actions in letting out the property were not caused by his disability.
 
The Court of Appeal however decided in the tenant’s favour and held that he was a disabled person for the purposes of the DDA and could rely on s.22(3)(c) of the DDA even though he had no security of tenure and the court had no discretion not to make a possession order. The other important findings of the Court of Appeal were (37):

1. even though it was not shown that his disability caused him to enter into the sub-letting the judge should have found there was an “appropriate relationship” between the subletting and his disability (Toulson LJ casting doubts on this approach but not to the point of disagreement (152)). As Lady Justice Arden explained in the leading judgment (107):
    
   “There is no evidence that Mr Malcolm approved the subletting in a perfectly lucid phase when he was fully able to understand the consequences of the transaction of subletting. In my judgment, the evidence as to the nature of Mr Malcolm’s condition, which involved a susceptibility to distortions of thinking and to concrete, and therefore limited thinking, is sufficient on the facts of this case to establish the relevant relationship, and there is no need to find a causal link between the treatment and the disability in the sense of showing that a schizophrenic episode actually caused the sub-letting.”
    
   (she also expressed the preliminary view @ 108 that if he had been taking his medication when the subletting occurred then he would not have these susceptibilities and it may be that a court could then decide there was no “appropriate relationship”)
2. the landlord’s lack of knowledge of the tenant’s disability did not preclude a finding of discrimination contrary to s.24 of the DDA.
3. if the “DDA defence” was proved then the court should dismiss the proceedings.  

Lady Justice Arden’s further analysis was that once it was held that the discrimination was unlawful then “the notice to quit will cease to be a valid notice” (60), with the effect that his contractual tenancy continued (121). Lord Justice Longmore concurred with this finding (139), though it was not a view shared by Toulson LJ (169) on the grounds that there was no evidence that at the stage the landlord had reason to suppose that the sub-letting had anything to do with the tenant’s disability.
 
At the time of writing this article a decision is awaited in Floyd-v-Scott (B5/2006/1199) where the landlord of an assured tenant was seeking possession on the mandatory rent arrears ground (ground 8). That appeal raises 2 DDA issues – does the DDA provide any defence? (presumably “yes” in principle in the light of the Malcolm decision); and, was the defendant’s disability an exceptional circumstance justifying an adjournment (again, it would be difficult to see why not if there is a credible “full defence” that could be run in the light of Malcolm). DJ Silverman at Edmonton County Court on the 15^th February 2007 has already decided – in Community Housing Association-v-Wye – that an injunction should be granted to prevent a s.21 possession claim from being pursued (see “Legal Action” May 2007 @ 29).
 
The Malcolm decision is an important one and provides a possible avenue for challenge by tenants in cases where previously their options may have been limited to non-existent. No doubt it will be noted by the duty adviser desks around the country and lead to more adjournments where the DDA question is put in issue.