LB Lewisham v Malcolm, Disability Rights Commission intervening [2007] EWCA Civ 763

As Peter Ackroyd said of his magnum opus ‘London: The Biography’, this judgment should not be consumed all at once but taken down from time to time and read in parts. Luckily, Lady Justice Arden’s exemplary signposting of her judgment makes that possible, and I urge anyone who wishes to understand the outcome to take such an approach.

The writer does not agree with the court on all of the conclusions in this very long and complicated judgment but they can be summarised as follows:

• the Disability Discrimination Act 1995 (as amended)(“DDA”) can be relied upon by a respondent in circumstances where a court otherwise has no jurisdiction to refuse an application
• the issue of whether a person is disabled for the purpose of the DDA is a matter of fact for the judge
• where an impairment to a relevant function is more than minor or trivial it is ‘substantial’ for the purposes of the DDA
• where a person suffers from an impairment which might be relevant to the treatment he has received, that may be enough by itself to establish that the treatment is ‘related to’ his disability
• a party does not have to be aware of a disability to unlawfully discriminate on the basis of it (Toulson LJ dissenting)
  a formal notice (in this case a Notice to Quit) served unlawfully is invalid.
  

Though she did not give the judgment of the court, I propose only to refer to the structure of Arden LJ’s judgment and the following should be read with that in mind.

Mr Malcolm was a secure tenant who after beginning the process of buying his property but before finishing it, sublet that property thereby losing his security of tenure (irredeemably by reason of s93 of the Housing Act 1985) and therefore his right-to-buy. Having discovered this prior to closing the deal, Lewisham served a Notice to Quit purportedly terminating his tenancy and then sought to evict him.

Mr Malcolm, who suffered from schizophrenia, resisted on the basis that to evict him was unlawful discrimination per the DDA.

HHJ Hallon at first instance found that he did not fall within the class of persons protected by the DDA, that had he been then his eviction would not have been related to that disability and that the lack of knowledge of his illness on the part of the local authority landlord was a relevant factor. She therefore granted possession and he appealed.

The court formulated four questions:

1. Can Mr Malcolm rely on s22(3)(c) of the DDA 1995 in answer to Lewisham’s claim given that Lewisham has an immediate right to possession and the court has no discretion to withhold the possession order?
2. Was the judge wrong to hold that Mr Malcolm’s mental impairment did not have a substantial adverse effect on [his] ability to carry out normal day-to-day activities for the purposes of the DDA 1995?
3. Was the judge wrong not to hold that Lewisham’s reason for starting possession proceedings, namely Mr Malcolm’s subletting, was “related” to his disability for the purposes of s24(1)(a) of the DDA 1995? [note; there is an error in paragraph 37 of the judgment where ‘subletting’ is substituted by ‘disability’]
4. Should the judge have concluded that Lewisham’s lack of knowledge of Mr Malcolm’s disability at the time of the alleged discrimination would be relevant to determining whether there was discrimination for the purposes of s24?

1. Can Mr Malcolm rely on s22(3)(c) of the DDA 1995 in answer to Lewisham’s claim given that Lewisham has an immediate right to possession and the court has no discretion to withhold the possession order?

Section 22(3)(c) provides that it is unlawful for a person managing any premises to discriminate against a disabled person by evicting him. The meaning of ‘discriminate’ in that context is found in s24 and is where the discriminator treats a disabled person less favourably than he treats or would treat others for a reason which is “related to” the person’s disability (my emphasis). (It is possible to justify that treatment under the statute but no party in this case sought to argue that.)

In the writer’s view, if a person is disabled for the purposes of the Act and if steps which are taken for the furtherance of his eviction are unlawful because they are “related to” his disability, then any proceedings based on those steps are an abuse of process and the litigation must stop there. I fail to see how any court can properly endorse an unlawful act by allowing an application on such a basis. No doubt greater minds than mine found that that was too simple and straightforward an argument to advance and did not do so.

However the court came close to the idea in paragraphs 61 to 65 inclusive. but reached what was, to the writer’s mind, a bewildering, circular and complicated conclusion: having recited the fundamental principle that a person cannot succeed in litigation by relying on his wrong-doing the court did NOT conclude that a possession order could not follow an unlawfully issued or served Notice to Quit.

Instead it held in the last four lines of paragraph 65 thus:

• the fact that s22(3) makes an eviction or step-towards-eviction unlawful
• supports the interpretation of s22(3) which the court had expressed
• that a public sector landlord cannot escape the application of s22(3) merely because he is relying on loss of security by reason of s93 of the Housing Act 1985
  

This is a complicated way of saying that as s22(3) is unqualified and not overridden by anything in s93. What it fails to do is to illustrate how a litigant might give effect to his protection under s22(3).

In the writer’s view the answer is plain: it is because the court cannot be used to endorse unlawful acts. Therefore although Parliament seems to have neglected to prevent disabled people losing security of tenure in the circumstances of this case, it does not follow that the right of the landlord to end the resulting contractual tenancy will be given effect. The tenant will remain unless and until his eviction can be justified within the meaning of the DDA (query whether that would require the service of another notice or (as the writer gleans from Romano) not.)

By contrast Arden LJ held – so clearly that it will be difficult to distinguish – that the effect of the unlawfulness of the service of the NTQ is to render that NTQ invalid.

With due deference to the huge forensic and intellectual advantages enjoyed by the court over the writer, the latter struggles to find any basis in law for this finding. After the secure tenancy has ended, it is replaced by a contractual periodic one which may be ended using the prescribed procedure. It seems to the writer that that continues to be the case unless and until statute provides otherwise.

In the DDA, statute has provided that the service of that notice is unlawful; fundamental principles of law dictate that that notice may not be relied upon; but notwithstanding its uselessness, if the notice was in the proper form and properly served then it is valid. And this outcome is self-evidently consistent with Romano wherein the court found that a notice was valid but concerned itself with whether the subsequent steps were lawful.

The practical difference between the abuse of process approach (notice valid but useless) and the court’s approach (notice invalid) is, the writer suggests, the reverse of what the court would have wanted as it is the abuse of process approach which is the better outcome for the tenant. Using the court’s approach the tenant will remain the contractual tenant of the landlord subject to the same terms and conditions but without the extra rights granted by statute to secure tenants. Ergo his landlord would have no reason to grant him a new tenancy.

By contrast, the abuse of process approach would terminate the tenancy and mean that thereafter the landlord would not be able to enforce any of the terms. In those circumstances, the landlord would almost certainly want to grant a tenancy and if the landlord and tenant condition in s79 of the Housing Act 1985 were satisfied, that tenancy would be a secure one.

I see nothing to prevent a tenant’s advocate arguing in favour of the abuse-of-process approach – it was not rejected by the court; simply not mentioned. On the other hand, a landlord’s advocate would be on solid ground positing the apparently self-harming argument that if the court finds that the service of the notice to quit was unlawful then the notice was invalid.

2. Was the judge wrong to hold that Mr Malcolm’s mental impairment did not have a substantial adverse effect on [his] ability to carry out normal day-to-day activities for the purposes of the DDA 1995?

This was a factual matter and Arden LJ made not a single reference to the well-worn principle that an appellate court should be very slow to interfere with findings of fact given the disadvantage it has in not having heard the trial. In addition, the court made no mention whatever of the fact that the burden of proof in this part of the exercise was on the appellant to establish what the level and scope of his impairment was. The judge at first instance plainly had that in mind as the excerpt from her judgment at para 79 shows.

Though it is not obvious, the hook upon which the appellate court hung its judgment was the meaning of the word ‘substantial’ and the failure – the appellate court said – of the first instance judge to set this out. Readers should note that it was common ground before the court that the first instance judge did not need to set out the test. The court said that this failure meant that it could not probably (I think it meant ‘properly’) be assumed that the right test was used (paragraph 91).

And having thus found that the lower court’s judgment could not stand, the appellate court substituted its own view. It is very remarkable, in the writer’s view, that in doing so the appellate fell into a wholly equivalent error by failing to specify the period for which the appellant was impaired. Moreover, the appellate court gave no reasons for ignoring the evidence of the appellant’s family, or for the problems with the appellant’s own evidence highlighted in the court below, did not mention the burden and standard of proof and failed to state whether the length of the impairment satisfied the test in the statute.

Furthermore in such a discursive judgment, it is unfortunate that the court did not discuss the authorities in relation to capacity per CPR21. In the writer’s view, there is scope by parity of reasoning with those authorities to limit the scope of the phrase ‘carry out normal day-to-day activities’.

However, also in the writer’s view the appellate court seemed determined to find in Mr Malcolm’s favour, so further analysis is purposeless.

For reference there is a great deal of rather fruitless discussion of what ‘substantial’ might mean in this context. This is odd given that the word is defined in the guidance issued under the statute as being ‘more than minor or trivial’ (see paragraph 27, heading ‘A1’) and that the appeal was allowed on the basis that the judge did not set the test out, rather than because she got it wrong.

3. Was the judge wrong not to hold that Lewisham’s reason for starting possession proceedings, namely Mr Malcolm’s subletting, was “related” to his disability for the purposes of s24(1)(a) of the DDA 1995?

This is, in the writer’s view, the most difficult part of the appellate judgment to justify. Where it is plainly right is in confirming that this is a matter of fact for the judge to decide on the evidence.

In paragraph 101 the court discusses what the appropriate relationship is between an impairment and a potentially discriminatory action and referred to the decision in Clark v Novacold. In that case Mr Clark had an accident at work which caused him to become disabled within the meaning of the DDA. He was off sick while recuperating and the prognosis was not good. Novacold sacked him and tried to argue that the reason they did so was because he was going to be off work for a long time. Not surprisingly the Court of Appeal took the view that as he was going to be off work for that period because he was disabled so the sacking was ‘related to’ the disability. In that context the company might not even have considered the disability – this was a factual matter, and the sacking and impairment were plainly linked.

Arden LJ said:

‘What followed from the decision in that case is that the disability need neither be the sole cause of any action nor a matter without which the action would not have occurred.’

The first proposition in that sentence is uncontroversial. The second is obscured by a triple negative but in plain English it means that if an action would have been taken anyway, it can still relate to a disability. And that too is right. But as elsewhere in the judgment, Arden LJ asks a question, embarks on learned discourse, finds a technical reason to overturn the judge at first instance and then plumps for an answer which is inadequately supported by the facts.

This time she found that the judge had failed to take into account that applying for job-seeker’s allowance or making other decisions which appeared in the judgment, were ‘different in quality’ from the decision to sublet. Being as generous as one can, it is possible to read into the appellate judgment that that difference in quality is because the subletting had potential negative consequences. On the other hand, so does applying for benefit which, if inaccurate, could lead to imprisonment, confiscation of assets, an inability to borrow money and loss of livelihood.

Unfortunately Arden LJ does not seek to explain what the ‘difference in quality’ is.

There then follows the following in paragraph 107:

‘There is no evidence that Mr Malcolm approved the subletting in a perfectly lucid phase which he was fully able to understand the consequences of the transaction of subletting. In my judgment, the evidence as to the nature of Mr Malcolm’s condition, which involved a susceptibility to distortions of thinking and to concrete, and therefore limited (sic) thinking, is sufficient on the facts of the case to establish the relevant relationship...’

The first sentence here suggests that the court has forgotten where the burden of proof lies and is plainly irrelevant. The latter part contains the kernel of the judgment, which the writer expresses as follows:

the fact that a person is through disability susceptible to distortions of thinking is sufficient for the court to find that any decision contrary to his interests which he takes during the period he is so susceptible is ‘related to’ his disability.

This is, in the writer’s view, carrying the Novacold principles too far. It is right that a person pleading the DDA does not have to establish that he was discriminated against by reason of the fact of his disability; nor does he have to exclude other reasons why what happened might have happened; nor does he have to show that a non-disabled person would have been treated differently; nor does he have to show that his disability caused him to act as he did and occasion a discriminatory reaction (though obviously his case would be stronger if any of those four could be shown more likely than not).

But it is too liberal an approach in the writer’s view to conclude [paragraph 108] ‘the statutory requirement for a relationship between the disability and subletting does not require the court.. to go into the question of whether at the actual moment of subletting he was or was not suffering an actual schizophrenic episode, but simply whether his then current general state of health as a result of the condition from which he suffered rendered him liable at that point in time to suffer relevant difficulties of understanding.’

LJ Toulson seemed to take the writer's view [paragraph 152] and reminded the court of the need expressed in Novacold for there to be a ‘causal link with disability’, but it is Arden LJ’s judgment with which the majority agreed.

4. Should the judge have concluded that Lewisham’s lack of knowledge of Mr Malcolm’s disability at the time of the alleged discrimination would be relevant to determining whether there was discrimination for the purposes of s24?

The court concluded that lack of knowledge was irrelevant. This is consistent with the unqualified wording of the act but also to the factual approach to finding whether the act complained of was related to the disability.

LJ Toulson disagreed, arguing that because the part of the DDA from which ss22 and 24 came established tortious liability, he felt that Parliament would not have intended such liability to arise without knowledge. On this basis (to the writer’s mind wrongly) the noble Lord found that the Notice to Quit was valid as it had been served at a time when the landlord was not aware of the disability.

The writer notes that the court was wrong in paragraph 119 to say that lack of knowledge might be relevant to the issue of justification. It is not as justification under the Act relates to the necessity of the treatment, not the culpability of the treater. It would however be relevant to damages.

CONCLUSION

This is a difficult area and a difficult judgment, the first finding of which – that the DDA applies even where there is apparently no power for a court to refuse an application – is of general effect. Beyond that, for all its appearances it really only assists in the very limited circumstances of a) an eviction and b) where the person’s disability relates to his understanding and mental processes.

The writer anticipates that there will be a few cases where the case will be invoked whereupon the factual battle ground will widen from the traditional approach of considering the loss of security or breach of tenancy to encompass evidence relating to the health, impairment and functioning of the tenant, unlikely ever to be dealt with in a single day.

One important point to remember in identifying the issues for the trial, is that if the eviction sought does not affect any third party, (for instance, for arrears, loss of security through sub-letting, breach of tenancy condition other than anti-social behaviour) justification is not going to be relevant as it cannot be within the restricted definition in s24 of the DDA.