Property Matters July 2008

Disability Discrimination

End of an ‘unjust regime for landlords’?

Imagine that you are landlord of Anywhere Business Park, and Unit 1 is let to Mr Problem.  He, without any reference to you, carries out alterations to the unit which in your view will make it virtually unlettable in future, and which give rise to concerns about its structural integrity.  You issue court proceedings to evict him and claim damages.

In the course of the court proceedings it emerges that Mr Problem, unbeknown to you, suffers from schizophrenia, which impaired his judgment, and could have led to him deciding to carry out the alterations.  The court decides, as a result, that your action to evict him amounted to unlawful discrimination on the grounds of disability, even though you knew nothing about his illness.

This not only prevents the eviction and defeats your claim for damages, but also prevents any other action against him; such as an injunction forcing him to put the property back as it was.  Moreover it exposes you to an action for damages for unlawful discrimination.
Now imagine that your tenant of Unit 2 on the same business park applies to you for consent to transfer their lease to Mr Problem.  To refuse consent on the basis that his mental condition may lead him to make disastrous decisions in relation to the property would also be unlawful discrimination.

This was actually the state of the law until a recent landmark decision in the House of Lords, concerning the meaning of “discrimination” in the Disability Discrimination Act 1995 (“DDA”).

Background
The case concerned is London Borough of Lewisham v Malcolm [2008].  The factual background was essentially as in the above Unit 1 example, except that it was a residential property, and the breach of covenant on the tenant’s part was not quite so alarming.  Mr Malcolm had sublet the property without consent and his landlord, London Borough of Lewisham, took action to evict him.

The legislation
The relevant provisions of the DDA are:

Section 22(3)(c), by which “It is unlawful for a person managing any premises to discriminate against a disabled person occupying those premises …by evicting the disabled person, or subjecting him to any other detriment”; and

Section 24(1), which provides that for the purposes of section 22, a person discriminates against a disabled person if “for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply”.

A problem of interpretation
Section 24(1) logically requires that a ‘comparator’ be identified, that is, a notional “other to whom that reason does not or would not apply”.  One can then compare how the landlord has treated or would treat such a person, as against how the landlord has actually treated the disabled person.  In identifying the appropriate comparator, however, the courts have struggled with the apparently innocuous words “that reason”.

To understand why, let’s refer back to the example of Mr Problem.  The reason for eviction is that he has carried out unlawful alterations; this reason is related to his disability, i.e. his mental illness.

• If one interprets “that reason” in section 24(1) as referring back simply to the earlier words “a reason”, the appropriate comparator is a tenant who has not unlawfully altered the property.  Would they be evicted?  Of course not, therefore the disabled person has been treated less favourably than the comparator, therefore there is unlawful disability discrimination.  That is what one may call the “wider” interpretation.
• The “narrower” interpretation is to regard “that reason” as referring back to the words “a reason which relates to the disabled person’s disability”.  This interpretation brings the disability back into the equation, so that the appropriate comparator becomes a tenant without a mental disability who has carried out unlawful alterations.  Would they be evicted?  Yes of course they would, so the disabled person is not treated less favourably, therefore there is no discrimination.

The House of Lords was faced with a choice between these two interpretations.