Local government – Mental health – Possession claims – Public sector tenancies – Schizophrenia

Lewisham London Borough Council v Malcolm (2008): HL (Lord Bingham of Cornhill, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury): 25 June 2008

The appellant local authority appealed against the dismissal of its possession proceedings against the respondent (M).

M had been diagnosed with schizophrenia. His condition was stabilised by medication. He had become a secure tenant of the local authority. He had exercised the right to buy his flat but before completion he had sublet it. The local authority had not consented to that subletting and accordingly M thereupon ceased to be a secure ­tenant by reason of section 93 of the Housing Act 1985. It appeared that M had not been taking his medication at the time of the sublet. The local authority discovered that M had sublet his flat and gave notice to quit and issued proceedings for possession. There was no evidence that the local authority was aware that M ­suffered from schizophrenia. The ­possession order was granted and the judge concluded that the causal ­relationship between the schizophrenia and the subletting was insufficiently established. The Court of Appeal ­dismissed the possession proceedings, declared that the notice to quit and possession action constituted unlawful discrimination contrary to section 22(3) of the Disability Discrimination Act 1995 and, in accordance with section 24(1)(a) of the act, found there was an appropriate relationship between the reason for the local authority’s actions and M’s ­illness, and M’s treatment had been less favourable than that of others to whom that reason did not apply.

The issues that arose were: (i) for the alleged discriminator’s reason to relate to the disability for section 24(1)(a) purposes, whether it was necessary for the fact of the ­disability to have played at least some motivating part in the mind of the alleged discriminator in leading him to subject the disabled person to the treatment complained of; (ii) who were to be the comparators, the ‘others’ referred to in section 24(1)(a) and what characteristics should be attributed to them.

Held: (Baroness Hale dissenting in part) (1) There was no evidence that the local authority was aware that M ­suffered from schizophrenia and his schizophrenia was not in its mind when deciding to serve notice to quit and take possession proceedings against him. It was not enough for M to show that, objectively viewed, there may have been a causal connection unknown to the local authority between the sublet and M’s disability. M needed to show that his mental condition played some motivating part in the local authority’s decision to ­terminate his tenancy and recover possession. That he had not done. The local authority’s reason was that M had sublet and moved out, Taylor v OCS Group Ltd (2006) EWCA Civ 702, (2006) ICR 1602 applied.

(2) Parliament must surely have intended that the comparison directed by section 24(1)(a) be a meaningful comparison to distinguish between treatment that was discriminatory and treatment that was not. If a tenant had been given notice ­terminating his tenancy because he had sublet in breach of the tenancy agreement, there was no point in ­making the lawfulness of the action taken by his landlord dependant on whether notice to quit would have been served on tenants who had not sublet. The statutory comparator would be a secure tenant with no mental illness who had sublet. Such a tenant would have received no ­different treatment from the local authority than M received. There was no less favourable treatment meted out to M and therefore no discrimination, Clark v TDG Ltd (t/a Novacold Ltd) (1999) 2 All ER 977 CA (Civ Div) ­overruled and S v Floyd (2008) EWCA Civ 201, (2008) NPC 34 considered.

(3) (Per Baroness Hale) Parliament could have chosen a form of words which made it entirely plain that it intended the comparison to be made under section 24(1)(a) to be with ­people who did not have the disability in question, but Parliament deliberately chose a different formulation. The comparison in the present case ought to be made with people who had not sublet.

Appeal allowed.

James Goudie QC, Stephen Evans (instructed by in-house solicitor) for the appellant; Jan Luba QC, Sylvester Carrott (instructed by Hartnells) for the respondent.