Disabled Tenant Not Discriminated Against.

The House of Lords has ruled that a disabled council tenant who was evicted from his flat for breach of the terms of his tenancy agreement had not suffered disability discrimination. The judgment overturned a previous decision by the Court of Appeal in favour of the tenant and has far-reaching implications.

The case concerned Courtney Malcolm, a tenant of Lewisham London Borough Council, who suffered from schizophrenia. He sublet his flat, in breach of the tenancy agreement, and so was served notice to quit. Mr Malcolm contended that he was disabled under the Disability Discrimination Act 1995 and that the Council had discriminated against him.

In determining whether or not Mr Malcolm had been treated less favourably on account of his disability, the Law Lords considered the nature of the treatment to which he had been subjected. The Landlord had sought to repossess the flat and it was agreed that the reason for this decision was the tenant's having sublet the property.

Lord Bingham pointed out that Lewisham Council, as a social landlord with a long waiting list, could not allow a tenancy to continue when the tenant was absent. He concluded that the Council's decision was based purely on housing management criteria and had nothing to do with Mr Malcolm's mental disability. Indeed, at the time of the decision, the Council was not aware that he was disabled.

In deciding whether Mr Malcolm had been treated unfairly, Lord Bingham stated that the correct comparison to be made was with a tenant who did not have a mental disability but who had breached the terms of their tenancy by subletting. In such circumstances, a non-disabled tenant would have been equally in breach of their tenancy agreement and would have been treated in the same way.

For these reasons, the Law Lords held that Mr Malcolm had not been treated less favourably and had not suffered disability discrimination.

Landlords should not be afraid to stick to the principles of the tenancy agreement, providing it has been properly worded. A landlord will only fall foul of the Disability Discrimination Act if they know that a tenant is disabled and treat that person less favourably than they would a tenant without a disability in the same circumstances.

Partner Note
Lewisham London Borough Council v Malcolm. See http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd080625/lewish-1.htm.
Reported in The Times, June 26 2008. See http://business.timesonline.co.uk/tol/business/law/reports/article4214654.ece.

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