For some time there has been concern about the inter-relationship of mandatory-ground possession proceedings under HA 1988 and the Disability Discrimination Act 1995.
In Malcolm [2007] it was held that a possession order should not have been made against a disabled T, since, on the facts, that amounted to unlawful discrimination under DDA 1995. Since then, it has become common for it to be argued that T has a disability and that is therefore a defence to a possession action. However, that approach has now been seriously undermined by the CA in a case involving an assured T who was £8,000 in arrears of rent. At first sight, that would be a mandatory ground for possession under HA 1988, but T argued that he suffered from an obsessive compulsive personality disorder and it would be disability discrimination for him to be forced to leave his premises, because of his medical condition. That argument failed in the CA, with the court taking the view that there is a widespread misconception of the nature and purpose of DDA 1995:
‘The 1995 Act was enacted to provide remedies for disabled people at the receiving end of unlawful discrimination. It was not aimed at protecting them from lawful litigation or at supplying them with a defence to breach of a civil law obligation.’
In the court’s view, discrimination is not concerned with the effects of a person’s disability or his ability to do things, but rather with a ‘reason’ for treatment. Thus, as the Code of Practice says, ‘the prohibition does not prevent the eviction of a disabled T where the law allows it, for example, where they are in arrears of rent... and where the reason for this is not related to their disability’.
This latest decision is a substantial retreat from Malcolm [2007]. However, it is not the last word, because Malcolm is due shortly to be heard by the HL and accordingly their further guidance is awaited. For a commentary on Floyd v S [2008] EWCA Civ 201 see [2008] NLJ 588. © Practical Lawyer
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June 2008 |
