MODERN HEALTH POLICY IS THAT THOSE WHO
suffer from mental illness should take such
part as they can in society, rather than being
institutionalised. Achieving this, of course, is not
without problems. For landlords, the concern is
often the tenant whose illness causes them to
behave towards other tenants in a manner that
may be abusive, annoying or intimidating.
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.
