|Judgments - Mayor and Burgesses of the London Borough of Lewisham (Appellants) v Malcolm (Respondent)
HOUSE OF LORDS
 UKHL 43
on appeal from:  EWCA Civ 763
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Mayor and Burgesses of the London Borough of Lewisham (Appellants) v Malcolm (Respondent)
Lord Bingham of Cornhill
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Lord Neuberger of Abbotsbury
(Instructed by London Borough of Lewisham)
Jan Luba QC
(Instructed by Hartnells)
28 AND 29 APRIL 2008
WEDNESDAY 25 JUNE 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Mayor and Burgesses of the London Borough of Lewisham v Malcolm
 UKHL 43
LORD BINGHAM OF CORNHILL
(1) Was Mr Malcolm at the relevant time a disabled person?
(2) To what treatment was Mr Malcolm subjected?
(3) What was the reason for this treatment?
(4) Did that reason relate to Mr Malcolm's disability?
(5) With the treatment of what comparators should the treatment of Mr Malcolm be compared?
"the complainant is logically bound to be able to satisfy the requirement of showing that his treatment is less favourable than would be accorded to others to whom the reason for his treatment did not apply. For without the reason there would not be the treatment."
The truth of that observation is vividly illustrated by the present case: if a tenant had not sublet and gone to live elsewhere Lewisham would not, in the absence of other grounds, have contemplated seeking possession (or, probably, been entitled to do so), and thus no question of discrimination could ever have arisen.
(6) Is it relevant whether Lewisham knew of Mr Malcolm's disability?
"I do not believe that Parliament would have intended to make a person liable in tort for disability discrimination if that person had no awareness or grounds for awareness at the relevant time that the complainant was suffering from a disability or that his disability might have any connection with the matters giving rise to the treatment said to constitute unlawful discrimination."
The grounds of justification specified in section 24(3) of the 1995 Act assume, I think, that the landlord has knowledge of the tenant's disability, as Arden LJ was tentatively willing to accept (para 119), although reaching a different conclusion (paras 112-118). This seems to me to reinforce the conclusion that knowledge, or at least imputed knowledge, is necessary. It would be anomalous if a landlord needs to know of the tenant's disability if he is to justify but not otherwise.
(7) Has Mr Malcolm a defence to Lewisham's claim for possession?
"It is not immediately obvious ... (b) how a landlord would be unlawfully discriminating against a disabled tenant by taking steps to enforce his statutory right to a possession order for admitted non-payment of rent for 132 weeks ... The legislation is not about disability per se: it is about unlawful acts of discrimination on a prohibited ground, ie, unjustified less favourable treatment for a reason which relates to the disabled person's disability."
I would not, however, accede to Lewisham's contention, accepted by the judge but rejected by the Court of Appeal, that a claim for possession to which there is no defence under housing legislation can never be defeated even where the claim is shown to be discriminatory. Parliament has enacted that discriminatory acts proscribed by the 1995 Act are unlawful. The courts cannot be required to give legal effect to acts proscribed as unlawful. But I would not expect such a defence, in this field, to be made out very often.
LORD SCOTT OF FOSCOTE
"(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act 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
(2) In this Act 'disabled person' means a person who has a disability"
"It is unlawful for a person managing any premises to discriminate against a disabled person occupying those premises -
(c) by evicting the disabled person, or subjecting him to any other detriment."
And section 24(1) defines "discrimination" -
"For the purposes of section 22, a person ('A') discriminates against a disabled person if -
(a) 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; and
(b) he cannot show that the treatment is justified."
Section 24(2) says that, for the purposes of the section, treatment is justified if, and only if -
"(a) in A's opinion one or more of the conditions mentioned in subsection (3) are satisfied; and
(b) it is reasonable, in all the circumstances of the case, for him to hold that opinion"
There were four original subsection (3) conditions which have, subsequent to the events giving rise to this litigation, been added to by amendment. But none has any relevance to this case and it is not necessary to refer to them further. The important issue of law which arises in this case is how section 24(1)(a) should be construed and applied.
The main issue
" damages in respect of discrimination in a way which is unlawful under [Part III] may include compensation for injury to feelings whether or not they include compensation under any other head."
There are, of course, in our civil law torts of strict liability. Trespass is one. If a person goes without permission on to land that belongs to someone else, it is no defence for the trespasser to say, and prove, that he thought that he was the owner of the land. Another example is the obligation of an employer to provide a safe system of work for his employees. This obligation is an absolute one and if an employee is injured by a latent defect in the machinery with which he is working it is no defence for the employer to say, and prove, that the defect was not foreseeable. The concept, therefore, of tortious liability without fault is by no means unknown. But in the two examples I have given, the social purpose and justice underlying the imposition of strict liability is understandable. As between employer and employee it should be for the employer to ensure that the premises in which and the machinery with which his employees work are safe. The risk that there are unforeseeable dangers must be accepted by the employer. And as between the true owner of land and the mistaken trespasser the law must surely favour the true owner whose title has been called into question. But nominal damages may be all that the successful landowner can recover against an innocent trespasser. In the field of employment, or of the provision of goods, facilities and services, or of the disposal or management of premises (see the long title to the 1995 Act) the protection of disabled persons against being subjected to unfavourable treatment on account of their disability was plainly the primary purpose of the Act. But could it really have been intended by Parliament that all employers vis-à-vis their employees, all providers of goods, facilities and services vis-à-vis their customers and all managers of premises vis-à-vis the occupiers of the premises were to be subjected to the risk of becoming statutory tortfeasors and liable to substantial damages claims on account of normal actions taken in understandable pursuit of their respective interests against persons of whose disabilities they were totally unaware? I find it very difficult to accept that that could have been intended by Parliament. In my opinion, a "reason" does not "relate to" a disability for section 24(1)(a) purposes unless the fact of the physical or mental condition in question has played some causative part in the decision-making process of the alleged discriminator. A "reason" could not, in my opinion, "relate to" a physical or mental condition of the person in question of which the alleged discriminator was unaware.
"A contrary interpretation is submitted on behalf of the applicant. His argument is that 'that reason' refers only to the first three words of paragraph (a) - 'for a reason'. The causal link between the reason for the treatment and the disability is not the reason for the treatment. It is not included in the reason for the treatment. The expression 'which relates to the disability' are words added not to identify or amplify the reason, but to specify a link between the reason for the treatment and his disability which enables the disabled person (as opposed to an able-bodied person) to complain of his treatment. That link is irrelevant to the question whether the treatment of the disabled person is for a reason which does not or would not apply to others. On this interpretation the others to whom 'that reason' would not apply are persons who would be capable of carrying out the main functions of their job. Those are the 'others' proposed as the proper comparators. This comparison leads to the conclusion that the applicant has been treated less favourably: he was dismissed for the reason that he could not perform the main functions of his job, whereas a person capable of performing the main functions of his job would not be dismissed."
Translated for the purposes of the present case, this interpretation would treat the sub-letting as "that reason" and the "others" as tenants who had not sub-let. This was the interpretation that the Lord Justice preferred (see at 963 B to H). He summarised the effect of his conclusion at E to H -
"The result of this approach is that the reason would not apply to others even if their circumstances are different from those of the disabled person. The persons who are performing the main functions of their jobs are 'others' to whom the reason for dismissal of the disabled person (that is inability to perform those functions) would not apply"
" would normally require the existence of something in and consciously or subconsciously affecting the mind of the discriminator".
As will have appeared, I am in complete agreement with that proposition. The Floyd case, like the present case, was a "premises" case involving a tenancy. Mrs Floyd was the landlord. Her tenant had fallen into arrears with the rent and she instituted possession proceedings. One of the submissions made by Mr Luba, counsel for the tenant in that case as in this, was that the tenant's lack of mental capacity was the cause of his falling into arrears in payment of rent, that his lack of mental capacity constituted a disability for the purposes of the 1995 Act and that the "reason" for the claim for possession was a reason that related, for section 24(1)(a) purposes, to the tenant's disability. The argument was that the landlord's claim was, therefore, an unlawful act. The Court of Appeal rejected that submission. Mummery LJ said, at para 48:
"The second difficulty is on the law. It is not immediately obvious (a) how the 1995 Act could provide a basis for resisting a claim for possession on a statutory mandatory ground or (b) how a landlord would be unlawfully discriminating against a disabled tenant by taking steps to enforce his statutory right to a possession order for admitted non-payment of rent for 132 weeks. The 1995 Act was enacted to provide remedies for disabled people at the receiving end of unlawful discrimination. It was not aimed at protecting them from lawful litigation or at supplying them with a defence to breach of a civil law obligation. Like other anti-discrimination legislation, the 1995 Act created statutory causes of action for unlawful discrimination in many areas, such as employment, the provision of goods, facilities and services and the disposal or management of premises, but it did not create any special disability defence to the lawful claims of others, such as a landlord's claim for possession of premises for arrears of rent. The legislation is not about disability per se: it is about unlawful acts of discrimination on a prohibited ground, i.e., unjustified less favourable treatment for a reason which relates to the disabled person's disability" (emphasis added).
I respectfully agree with everything in that paragraph but the passage I have emphasised is not, in my opinion, consistent with Clark v Novacold.
" In our view, the argument accepted by the Employment Appeal Tribunal and advanced before us by Ms Gill is fallacious. These provisions of the 1995 Act are concerned with discrimination by an employer. Discrimination requires that the employer should have a certain state of mind. In the context of the 1995 Act, an employer cannot discriminate against the employee unless he treats the disabled employee differently for a reason (present in his, the employer's, mind) which is related to the employee's disability. It may be that in some cases an employer might have more than one reason for dismissing an employee; one reason might be misconduct and there might also be present in the employer's mind another reason which does relate to his disability such as the fact that the employee took a lot of time off work or had a lower productivity than other employees. The employer might decide to dismiss the employee for those combined reasons. In such a case, we would say that, if the disability-related reason had a significant influence on the employer's decision, that would be enough to found the conclusion that the dismissal was for a reason related to the employee's disability. We would add that it would be open to an employment tribunal to find that the employer's decision had been affected by the disability-related reason even though the employer had not consciously allowed that reason to affect his thinking. We would certainly accept than an employer could have an innate prejudice against disabled people just as some are prejudiced on the grounds of race or gender. What is important is that the disability-related reason must affect the employer's mind, whether consciously or subconsciously. Unless that reason has affected his mind, he cannot discriminate."
I am in respectful agreement with all of this.
The other issues
BARONESS HALE OF RICHMOND
"You must live in the property as your only or principal home. You must not sublet. You must not be absent (except in cases of emergency) for a continuous period of more than two months without first obtaining the written permission of the Council."
Clause B5 of the agreement warned secure tenants that subletting also had the automatic effect that the tenancy was no longer a secure tenancy and could never subsequently become one.
"If the tenant under a secure tenancy parts with the possession of the dwelling-house or sublets the whole of it (or sublets first part of it and then the remainder), the tenancy ceases to be a secure tenancy and cannot subsequently become a secure tenancy."
The reasons for these provisions are obvious. There is a very limited stock of social housing in this country. It is intended for the people who are most in need of it because they less able than others to acquire their own housing, whether by renting or buying, in the open market. Local authorities are obliged to follow statutory criteria in allocating council housing. They also have statutory duties to house homeless people who have particularly pressing needs. It is unfair to the people who have a good claim to social housing to allow people who have so little need of it that they can sublet it and live elsewhere to retain their security. Nor should council tenants be allowed to make money out of their council housing by treating it as an investment.
"The claimant as a council is statutorily bound to observe the allocation scheme and the scheme for helping homeless people with accommodation as set out in the Housing Act 1996 with respect to allocating council tenancies. It would be unfair to applicants for council housing and homelessness applicants under those schemes to allow the [subtenants] to stay in the property as a result of [Mr Malcolm] having wrongfully sublet it to them. The Council has a serious shortage of properties to let to applicants and [Mr Malcolm] is in breach of the terms of his tenancy agreement and therefore the Council requires possession of this property."
"Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act 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."
Schedule 1 further defines or explains the various elements of this definition. Paragraph 4 provides that an impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of a list of capacities; the relevant capacities here are "(g) memory or ability to concentrate, learn or understand" and "(h) perception of the risk of physical danger". Paragraph 6 provides that an impairment which would be likely to have a substantial adverse effect were it not for corrective measures, including medical treatment, is to be treated as having that effect. Paragraph 2(2) provides that where an impairment ceases to have a substantial adverse effect upon on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.
". . . a person ('A') discriminates against a disabled person if - (a) for a reason which relates to the disabled person's disability, he treats him less favourably then he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified".
Before the 2005 Act amendments, there was no duty to make reasonable adjustments in relation to premises.
(1) Was Mr Malcolm a disabled person at the relevant time?
(2) Less favourable treatment
"Others to whom that reason does not or would not apply"
"Currently the comparison is with the treatment of a person who does not have the disability in question. For example, there may be two employees who cannot type - one because of arthritis and one (who is not disabled) because he has never been taught. Both would argue that he is not treating the disabled person less favourably than someone without that disability. He is treating all people who cannot type in the same way. That argument may well succeed and the person with arthritis would have no ground for complaint, even though the employment was refused for a reason relating to disability.
Amendment No. 21 would ensure that the comparison is made with people to whom the reason in question does not apply. It correctly reflects the need to show that the treatment was for a reason relating to the disability and not necessarily the mere fact of disability. Thus if the employer is rejecting people who cannot type he will be treating more favourably those who can. The person with arthritis who did not get the job can show that he or she was treated less favourably than the person with typing abilities who did. The employer may well be able to justify that treatment . . . But at least the disabled person would have to be given the consideration due under the Bill."
These amendments were welcomed in the House of Lords. A similar explanation was given in the House of Commons when it was invited to agree to the Lords' amendments: Hansard (HC) 31 October 1995, cols 118-9. This was Parliament's final and considered response to questions raised during the passage of the Bill.
"A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person."
Direct discrimination of this sort cannot be justified. If the old section 5(1) (now section 3A(1)) had had the narrow scope which your Lordships' interpretation would give it, it is difficult to see why Parliament needed to introduce section 3A(5). It could simply have repealed the justification provision in section 5(1)(b).
"A reason related to his disability"
"The absence of a duty to adjust and the limited circumstances in which less favourable treatment can be justified . . . make it particularly important to establish how closely connected the reason must be to the disability in order to come within s 24(1)(a). For example, if a person has been excluded from employment because of his disability, the fact that he has little or no money and is unable to pay a deposit and a month's rent in advance is, to an extent, related to his disability. As the comparison is to be made with someone 'to whom that reason does not apply' rather than someone without that (or any) disability, it is to be made with someone who is able to pay a deposit and a month's rent. Presumably the DDA does not require landlords to let premises to those unable to pay sums that would be required of any tenant. . . . In such a case the link between the disability and the reason for the treatment is likely to be too remote to satisfy the first part of the definition. Other cases may be less straightforward . . . "
How close, therefore, does the connection have to be between the reason for the landlord's behaviour and the complainant's disability?
"As we see it, the expression may include a reason deriving from how the disability manifests itself even where there is no knowledge of the disability as such . . . it does require employers to pause to consider whether the reason for some dismissal that they have in mind might relate to disability and, if it might, to reflect upon the Act and Code of Practice before dismissing".
This was a case in which the employer knew all the material facts. There was every reason to think that the reason for the dismissal might be related to a disability. It was not a case where the alleged discriminator did not know and had no reason to know that the reason for his actions might be related to a disability.
Answering the factual questions in this case
(a) What is the treatment complained of?
(b) What was the reason for the treatment?
(c) Did that reason relate to the disabled person's disability?
(d) Was the treatment less favourable than the treatment of others to whom that reason did not apply?
(3) What is the consequence of unlawful disability discrimination for the landlord's right to regain possession?
"It is not immediately obvious (a) how the 1995 Act could provide a basis for resisting a claim for possession on a statutory mandatory ground or (b) how a landlord would be unlawfully discriminating against a disabled tenant by taking steps to enforce his statutory right to a possession order for admitted non-payment of rent for 132 weeks. The 1995 Act was intended to provide remedies for disabled people at the receiving end of unlawful discrimination. It was not aimed at protecting them from lawful litigation or at supplying them with a defence to breach of a civil law obligation. Like other anti-discrimination legislation, the 1995 Act created statutory causes of action for unlawful discrimination in many areas, such as employment, the provision of goods facilities and services and the disposal or management of premises, but it did not create any special disability defence to the lawful claims of others, such as a landlord's claim for possession of premises for arrears of rent."
Mummery LJ went on to distinguish Floyd from the Court of Appeal's decision in this case on two grounds. First, the Council here were relying on their contractual right to possession rather than the statutory right in the 1988 Act (para 70). Second, the Court of Appeal had held that the subletting related to the tenant's disability. In Floyd, a finding that the reason for the proceedings related to the disability was impossible. It had never been suggested that the reason for the non-payment of rent was disability rather than the tenant's objection to the increase in rent (paras 70 and 71). The Court remarked upon the urgent need for this House to clarify the scope of the application of the DDA in possession proceedings (para 73).
LORD BROWN OF EATON-UNDER-HEYWOOD
"[A] person . . . discriminates against a disabled person if (a) 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 . . . "
"The 1995 Act was enacted to provide remedies for disabled people at the receiving end of unlawful discrimination. It was not aimed at protecting them from lawful litigation or at supplying them with a defence to breach of a civil law obligation. Like other anti-discrimination legislation, the 1995 Act created statutory causes of action for unlawful discrimination in many areas, such as employment, the provision of goods, facilities and services and the disposal or management of premises, but it did not create any special disability defence to the lawful claims of others, such as a landlord's claim for possession of premises for arrears of rent. The legislation is not about disability per se: it is about unlawful acts of discrimination on a prohibited ground, ie, unjustified less favourable treatment for a reason which relates to the disabled person's disability." (para 48)
LORD NEUBERGER OF ABBOTSBURY
(a) He must have been suffering at the relevant time from a "disability" within section 1(1);
(b) He must have been "treat[ed]" by Lewisham in a manner falling within section 22(3)(c);
(c) The "reason" for the treatment must "relate to" the disability within section 24(1)(a);
(d) The treatment must, also under section 24(1)(a), be "less favourabl[e]" than the actual or hypothetical treatment accorded to a comparator, namely a non-disabled person;
(e) The discrimination cannot be "justified" by Lewisham pursuant to section 24(2);
(f) The resultant discrimination gives him a defence to the action for possession.
Did Mr Malcolm suffer from a disability?
The treatment to which Mr Malcolm was subjected
The comparator under section 24(1)(a) of the 1995 Act
If the treatment was unlawful, does that give Mr Malcolm a defence?
The need for knowledge of the disability
The "reason" for the treatment and the link with the disability
The link between Mr Malcolm's subletting and his disability