Saturday, September 15, 2007

In two minds about Malcolm

Speaking to a solicitor friend of mine recently who does housing association repossession work, she said bitterly that it seemed to be impossible nowadays to evict tenants who have any sort of disability. She is not going to be pleased with the recent Court of Appeal decision in London Borough of Lewisham -v- Malcolm.

Mr Malcolm was a tenant of Lewisham LB. He suffered from schizophrenia which initially was controlled by medication. He applied to buy his flat under his statutory right to buy. However there were delays. At about this time he stopped taking his medication, and his behaviour became erratic. Before his sale had gone through he let his property to tenants. By doing this he lost his security of tenure, and with it many of his statutory rights. Lewisham therefore decided to serve him with a Notice to Quit, and then issued proceedings for possession.

Normally there would be no defence to such as claim, Malcolm having lost his security of tenure. However Malcolm defended on the basis of the Disability Discrimination Act 1995, section 22(3) of which makes it unlawful to discriminate against a disabled person by evicting them, claiming that he had only parted possession with the flat as a result of his disability which led him to make irrational decisions.

At first instance the Judge found that (1) Malcolm was not disabled within the meaning of the act, (2) that the section would not apply anyway in a claim where the Judge had no discretion to refuse an order for possession, (3) that the subletting was not caused by his disability and (4) that the LA could not have discriminated as they had no knowledge of his disability. However the Court of Appeal did not agree.

Rather worryingly for landlords, the Court of Appeal found for the tenant on all four of the issues in question. Malcolm was disabled with in the meaning of the act. The subletting had been connected to his disability as it had affected his day to day activities (and by implication the subletting, even though there was no direct evidence on this point). A landlord does not have to know about the disability to discriminate against the disabled, and finally s23(3)(c) is unqualified and does not limit the unlawfulness to cases where Judges have a discretion to grant possession. The Judge refers in paragraph 52 to two County Court decisions, one of being a case where a Judge refused to make an order under s21 where the tenant was disabled, as examples of courts happily adapting to the DDA 95 without difficulty.

The thought of landlords being unable to evict tenants under section 21 because of the DDA will send a shiver down the spine of all private landlords, and may well result in a private determination not to knowingly let to any disabled tenant in future. This will do nothing to help the prospects of the disabled (particularly those suffering from mental illness) obtaining accommodation in the private sector.

I have to say that although I do not like discrimination and approve broadly of protective legislation, I am worried by this case. For example, the status of Malcolm’s current occupation is now uncertain. He presumably is now unevictable, but it is probable that he does not have a tenancy (if the notice to quit served on him is still valid). Does this mean for example that the repairing obligations in s11 of the Landlord and Tenant Act 1985 do not apply? Or would this also be a breach of the DDA?

Also, it is one thing to use this type of legislation against social landlords, who to a certain extent have a duty to look after those in society who are disadvantaged. However this case opens up the prospect of the DDA being used against private landlords, even if claims for possession are brought under section 21. Is it right that a private landlord, who may only have a few properties, should be forced unwillingly to continue to rent to a tenant, simply because he is disabled, even if the landlord was unaware of his disability, when he would normally be entitled to possession as of right? Or would the private landlord be able to use justification in such a case?

This case opens up a vista of uncertainly which will no doubt make private landlords (particularly those who rent to tenants who are disabled) most uneasy.

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4 comments:

Nearly Legal said...

Tessa,

I posted on Lewisham v Malcolm a few days ago. I've just posted a follow up, partly in response to this post, because I don't think the implications for s.21 are quite what you suggest here. In particular, I think the DDA does not change s.21 and is only applicable in certain situations, even where the tenant is disabled. Detailed argument on Nearly Legal...

Nearly Legal said...

Ooops. Left off the blog link in my name.

Tessa said...

I am not saying that this case is authority for private landlords being unable to evict disabled tenants under s21 per se. We will have to wait and see where future cases take this legislation.

However in an article in the September issue of LAG, the authors commented "Malcolm has major implications for any eviction proceedings involving disabled people, regardless of whether the landlord is a local housing authority, registered social landlord or private individual". So it looks as if they consider that a successful defence against a private landlord under the DDA is a definite possible.

Hopefully a DDA defence will only be accepted, in the context of private landlords, in circumstances where the landlord was fully aware of the disability and acted in a way which was clearly discriminatory. Otherwise I can see private landlords refusing to take disabled people (particularly those with mental problems) as tenants. They may start doing this anyway. They will not want to become involved in contested evictions - even if they eventually win, it will have been a costly and time consuming exercise, best avoided.

Nearly Legal said...

Tessa,

Absolutely the DDA applies for private landlords, that wasn't quite what I was suggesting.

As far as I can see, for the DDA defence to be raised against an s.21, the tenant would have to be able to adduce sufficient evidence to show that the claim was brought for a reason related to the disability. So the initial burden will be on the tenant. In that situation, I would think that the landlord's awareness would be required, if not technically, then just to establish the defence in practice. It isn't going to be the easiest defence, for sure. The landlord still has the defence of justification.

I'm not sure about 'clearly' discriminatory, just discriminatory should do, surely.

Landlords refusing to take disabled people would be dreadful. If fear of a contested eviction will do that, then it should be clear to landlords that the DDA applies in specific circumstances - that if they attempt to use s.21 to cover an eviction of a tenant for a reason related to their disability, there is a defence and they may have to be prepared to justify their actions.

(Also on Nearly Legal)