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Lords quash Court of Appeal hearing in disability case

26 June 2008

The House of Lords has backed a landlord who evicted a disabled tenant who was sub-letting the property.

Last August the case went to the Court of Appeal, which ruled that even non-secure tenants could not be evicted if any breach of the tenancy agreement was related to their disability, Inside Housing reports.

Lewisham council tenant Courtney Malcolm successfully argued that he sub-let the property in June 2004 while suffering mental illness.

Under the Disability Discrimination Act (DDA) the council could not take possession of the property.

But this week law Lords quashed the appeal court's ruling.

They found that the council was not aware of Mr Malcolm's illness at the time and therefore he should be treated in law as anyone else without a disability.

Barrister Amimbola explained: "If the landlord would have treated both people in the same way, there is no discrimination."

In summing up Lord Neuberger of Abbotsbury said: 'There was no discrimination because the Court of Appeal applied the wrong approach to the identification of the comparator. I would therefore resort the order…requiring Mr Malcolm to deliver up possession of the flat to Lewisham.'

Mr Badejo said the decision would be a welcomed by landlords across the country.

Danusia Atkinson, associate in the employment practice, comments: "This case is likely to cause a headache for numerous claimants who have launched disability discrimination proceedings under previous case law.

"Not only does this case emphasise that a company cannot be liable under the DDA without knowing about the claimant's disability, but it casts some doubt on the position for employees who have been off work sick.

"This is a complicated case and is likely to result in numerous attempts by claimant employment lawyers to test the decision and clarify the position further."

The DDA describes a person as having a disability if he has "a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities".