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Landlords warned following disability discrimination case

publication date: Oct 16, 2007
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A recent Court of Appeal judgement has dramatically extended the reach of legislation aimed at preventing disability discrimination, law firm Browne Jacobson warns.

Property litigation lawyer, Sarah Freeston points out ‘the case deals with the conflict between a landlord’s absolute rights and the rights of people with disabilities and the decision appears to indicate that in conflicting circumstances landlords will need to be prepared to make special allowances for any tenants with disabilities. Importantly, the implications are not just related to residential tenancies but could also affect commercial landlords as well.’ In the case itself, Mr Malcolm was a secure tenant of a flat owned by Lewisham Borough Council and as such had a statutory right to buy the flat from the Council. Shortly before completing the purchase, Mr Malcolm sublet the flat breaching one of the tenant’s covenants and losing his status as a secure tenant and with it the statutory right to buy.

As a result the Council refused to complete on the purchase and instead gave Mr Malcolm valid notice to quit. Mr Malcolm refused to vacate and the Council issued proceedings for possession. This should have been a fairly routine case but it was compounded by the fact that Mr Malcolm had long been diagnosed as schizophrenic. As a result of failing to take his medicine, he had become psychotic for a period and it was during this period that he sub-let the flat. Mr Malcolm defended the possession proceedings by relying on the Disability Discrimination Act 1995 that states that “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”.

Under the terms of that Act, a disabled person is defined as a person having ‘a physical or mental impairment which has a substantial and long term effect on his ability to carry out normal day-to-day activities’ The Court of Appeal’s decision was that granting a possession order would constitute discrimination against Mr Malcolm and therefore be unlawful as Mr Malcolm’s decision to sublet did relate to his disability even though they held it did not need to be the cause of it. As a result, effectively possession could not be obtained unless Mr Malcolm provided other grounds for obtaining possession of his flat unrelated to his disability.

The Court of Appeal highlighted that the fact that the Council did not know about Mr Malcolm’s schizophrenia was irrelevant and in fact, suggested that in a case such as this a local authority was under obligation to make enquiries as to whether the subletting was related to any disability, it being a breach of covenant with such serious consequences.

As Sarah continues ‘Landlords need to be careful how they interpret this decision as the answer is not of course to avoid letting premises to people who are protected by the Act as that itself would be unlawful. In addition to inhibiting landlords’ rights, disability discrimination in cases such as these may lead to an award of compensation to the victim of discrimination which may prove even more costly for landlords.’