Not so long ago, the usual response was to evict. Now, however, the world has changed, and landlords must accept that eviction will almost always amount to unlawful discrimination. It should be appreciated that this does not just apply to residential premises.

LONDON BOROUGH OF LEWISHAM V MALCOLM AND ANOTHER

This recent Court of Appeal case shows just how heavily the Disability Discrimination Act 1995 has loaded the dice against the landlord. Three aspects of the case are particularly noteworthy:

• In previous cases, the courts have had a discretion whether or not to make a possession order, and disability discrimination was one factor in the exercise of that discretion. Malcolm is the first case in which the Court has refused a possession order on the grounds of disability discrimination despite having no such discretion under the applicable housing law. The three judges failed to agree among themselves what this meant for the ongoing legal status of Mr Malcolm’s occupancy. The landlord will have to try to work that one out for itself.
• The reason for eviction was not, in this case, abusive or harassing conduct, but the fact that Mr Malcolm had sublet the flat without permission. There was no evidence to show that a schizophrenic episode actually caused the subletting, but the bare fact that the nature of Mr Malcolm’s condition ‘involved a susceptibility to distortions of thinking’ was enough to hold that the eviction was for a reason that ‘related to’ his disability, and therefore amounted to unlawful discrimination.
• The Court held that discrimination could be established even though the discriminator did not know about the disability.

THE LANDLORD’S PREDICAMENT

To sum up the landlord’s position:

• Even if you have what would otherwise be a good reason for eviction, you may still be discriminating unlawfully if you proceed to evict and it turns out that your reason related to your tenant’s mental illness.
• It does not help you that you had no knowledge of that illness.
• It does not help you that it cannot be shown that the illness actually caused the conduct for which you are evicting, so long as the nature of the mental illness is of a type which might influence such conduct.
• It does not help you that the law otherwise gives you an absolute entitlement to evict; the Court will still find that your conduct was unlawful.
• The legal status of your ongoing relationship with the occupier of your property is a mystery.
• You cannot avoid problems of this sort by refusing to let your property to persons with a mental illness; that is also discriminatory and unlawful.

This is not to say that the law is wrong; a balance has been struck, as it must be, between the interests of the disabled and those of third parties. As Mummery LJ remarked in Clark v TDG Ltd (t/a Novacold), anyone who thinks that there is an easy way of achieving a sensible, workable and fair balance between the competing interests has probably not given much serious thought to the problem. The intention of this article is simply to bring home where that balance lies.

WHAT CAN A LANDLORD DO?

An obvious starting point is to talk to the tenant. Landlords must be alive to disability issues, and should be prepared for a process of engagement with the tenant and healthcare and social services agencies as a means of resolving problems. The process may be a long one.

Ultimately, in the case of the abusive and harassing tenant, landlords may have to rely on the defence of justification provided by the 1995 Act. An eviction that would otherwise be discriminatory may be justified, but the necessary conditions for justification are narrow. They are:

a) that in the landlord’s opinion the eviction is necessary in order not to endanger the health or safety of any person; and

b) that it is reasonable for the landlord to hold that opinion.

The landlords in Manchester City Council v Romano and another relied on this defence successfully, and were entitled to evict. The key for them was that they were prepared to show in some detail how they had arrived at the conclusion that eviction was necessary in order not to endanger health and safety, and to back it up with evidence.

By Mark Shelton, associate, Cobbetts LLP.

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