Lewisham London Borough Council v Malcolm

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date25 June 2008
Neutral Citation[2008] UKHL 43
Date25 June 2008

[2008] UKHL 43


Appellate Committee

Lord Bingham of Cornhill

Lord Scott of Foscote

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

Lord Neuberger of Abbotsbury

Mayor and Burgesses of the London Borough of Lewisham


James GoudieQC

Stephen Evans

(Instructed by London Borough of Lewisham)


Jan Luba QC

Slyvester Carrott

(Instructed by Hartnells)


My Lords,


I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Scott of Foscote and Baroness Hale of Richmond. I gratefully adopt their summaries of the background and issues in this appeal. I can state my own conclusions relatively briefly.


The conduct of Mr Malcolm in subletting and ceasing to live in the flat let to him by the London Borough of Lewisham ("Lewisham") had the effect of destroying the security of tenure he had previously enjoyed and breaching the terms of his tenancy so as to give Lewisham what was, in terms of housing law, an unanswerable claim to possession. To defeat that claim Mr Malcolm relied, unsuccessfully before Her Honour Judge Hallon but successfully before the Court of Appeal (Arden, Longmore and Toulson LJJ: [2007] EWCA Civ 763, [2008] Ch 129), on the terms of sections 22 and 24 in Part III of the Disability Discrimination Act 1995. The question is whether, on the facts and a correct understanding of the law, he was entitled to do so.


By section 22(3)(c) of the 1995 Act, "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". Section 24(1) provides that, for the purposes of section 22, 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; and (b) he cannot show that the treatment in question is justified". The permissible grounds of justification are specified in the section and none of them, it is agreed, is applicable in this case. By section 1, a person has a disability for the purposes of [the] 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."


These are the key provisions on which this appeal turns. They must be read purposively and in the context of the Act as a whole. It was an ambitious and complex Act, seeking (as I understand) to prevent disabled people being treated disadvantageously because of their disability. It sought to do this in a primarily negative way, by proscribing as unlawful certain acts of discrimination in several fields. As has been pointed out (Cases, Materials and Text on National, Supranational and International Non-Discrimination Law, ed Schiek, Waddington and Bell, 2007, p 132) the Act adopted a medical and not a social model of disability.


There are dangers in formulating lists of questions to be asked in situations such as this, since questions which are apposite in one case may be inapposite in another, and a jurisprudence may grow up around the terms of the questions when attention should be concentrated on the meaning and effect of the legislative text in question. But I think there are certain questions which call for an answer in this case, not all of which feature expressly among the issues framed by the parties.

(1) Was Mr Malcolm at the relevant time a disabled person?


The relevant time can only be the time of the action complained of. The judge, in a finely balanced decision (paras 32-42 of her judgment), concluded that Mr Malcolm was not at the relevant time a disabled person. The Court of Appeal took a different view ( [2008] Ch 129, paras 69-94, 123-131, 149) for reasons which I would for my part accept. Mr Malcolm suffered, as he had for some years, from a well-known form of mental illness which had led to a number of hospital admissions, some of them involuntary. His illness was not disabling when controlled by appropriate medication, but when such medication was not being given his ability to carry out normal day-to-day activities was substantially impaired, as evidenced by his inability to do his job and his consequent dismissal. The reasoning of the Court of Appeal is to my mind persuasive, and I need not repeat it.

(2) To what treatment was Mr Malcolm subjected?


In the Court of Appeal it was common ground that the treatment alleged to constitute discrimination was Lewisham's claim to possession, although there was some argument about whether the notice to quit would also constitute unlawful discrimination (para 35). As Toulson LJ pointed out (para 144) the eviction process involves a number of steps (the service of the notice to quit, the issue of a claim form, the obtaining of an order for possession and, perhaps, the enforcement of a warrant for possession). It seems to me, however, as to him, to be artificial to break the process down into different stages. The treatment complained of was Lewisham's conduct in seeking possession of the flat.

(3) What was the reason for this treatment?


In the Court of Appeal it was common ground that the reason for that treatment was the subletting of the flat by Mr Malcolm (para 35). As a result he was no longer living there. On discovering that Mr Malcolm's sub-tenants were living in the flat and he was not, Lewisham took immediate steps to obtain possession.


It seems to me, as held in a very different context in Sivakumar v Secretary of State for the Home Department [2001] EWCA Civ 1196, [2002] INLR 310, para 23, adopted in Sepet v Secretary of State for the Home Department [2003] UKHL 15, [2003] 1 WLR 856, para 22, that the task of the court is to ascertain the real reason for the treatment, the reason which operates on the mind of the alleged discriminator. This may not be the reason given, and may not be the only reason, but the test is an objective one. Here, it seems to me inescapable that Lewisham, as a social landlord with a limited stock of housing and a heavy demand from those on its waiting list, acted as it did because it was not prepared to allow tenancies to continue where the tenant was not living in the premises demised. That, I think, was the real reason for the treatment, a reason in no way inconsistent with that which the parties agreed. Lewisham could have been the subject of reasonable criticism, and might even have been judicially reviewed, had it acted otherwise than it did in any ordinary case.

(4) Did that reason relate to Mr Malcolm's disability?


As well explained by Lindsay J in H J Heinz Co Ltd v Kenrick [2000] ICR 491, para 27, and Rowden v Dutton Gregory [2002] ICR 971, para 5, with reference to section 5 of the Act (which uses similar language) it seems clear that the draftsman of section 24(1)(a) deliberately eschewed the conventional language of causation in favour of the broader and less precise expression "relates to". In this context I take the expression to denote some connection, not necessarily close, between the reason and the disability. Judged by this yardstick, most of the decided cases and frequently-discussed examples fall into place. Thus, for example, the reason for the dismissal of the claimant in Taylor v OCS Group Ltd [2006] EWCA Civ 702, [2006] ICR 1602, namely the violation of the confidentiality of a colleague's computer files, had nothing whatever to do with his disability, which was deafness. By contrast, the dismissal of the absent claimant in Clark v Novacold [1999] ICR 951, the refusal of entry to a blind person with a dog or the refusal of service to a customer with eating difficulties (hypothetical examples considered in that case and elsewhere), or the dismissal for slowness of a one-legged postman (a hypothetical example discussed by Lindsay J in Heinz v Kenrick, above), would all, in my opinion, disclose a connection between the reason for dismissal and the disability in question. But in borderline cases it will be hard to decide whether there is or is not an adequate connection.


I would accept that, but for his mental illness, Mr Malcolm would probably not have behaved so irresponsibly as to sublet his flat and moved elsewhere. He had, after all, worked in Lewisham's housing department for a time, and must have been well aware of the ground rules. But Lewisham's reason for seeking possession - that Mr Malcolm had sublet the flat and gone to live elsewhere - was a pure housing management decision which had nothing whatever to do with his mental disability. With some hesitation I would resolve this issue against Mr Malcolm.

(5) With the treatment of what comparators should the treatment of Mr Malcolm be compared?


In Williams v Richmond Court (Swansea) Ltd [2006] EWCA Civ 1719, para 41, Richards LJ suggested that section 24(1) of the 1995 Act required the court "… (iv) to identify the comparators, namely persons to whom the reason does not or would not apply …". This formulation was quoted with apparent approval in the present case by Longmore LJ (para 132) and Toulson LJ (para 143), although somewhat discounted by Arden LJ (paras 35-36). It seems to me that Richards LJ's formulation exactly reflects the statutory language and focuses accurately on the comparison which section 24(1)(a) requires.


The problem of identifying the correct comparator is one which Mummery LJ examined with care and in detail in Clark v Novacold. The problem can be re-stated on the facts of the present case, assuming (contrary to the conclusion I have expressed in answer to question (4) above) that Lewisham's treatment...

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