Under s24(1) Disability Discrimination Act 1995, L will discriminate where ‘for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply’. In a recent case, the T of an LA property illegally sub-let, so losing security of tenure. With no conventional defence to the claim, he sought to defend on the basis that the eviction would be unlawful under DDA because his decision to sub-let was related to his schizophrenia (which led him to make irrational decisions). He won in the CA, but that decision was overturned by the HL. In its view, the correct approach is to look at the situation of somebody who had acted in the same way as the disabled T but for a reason unrelated to a disability (eg what would have the position been if a non-disabled T had illegally sub-let the fl at?). On that basis, there was clearly no discrimination. Moreover, the HL added that there could be no discrimination unless L knew, or ought to have known, of the disability. The end result is a significant tightening up in the scope of disability discrimination.

Note that T’s disability can still be raised in possession proceedings on the basis that it is one of the reasons why it would not be ‘reasonable’ to make a possession order. For instance, T’s mental disability may be part of the overall reason why a judge may decide it is not ‘reasonable’ to make a possession order; likewise, if L is complaining of T’s behaviour but that behaviour is caused by a disability then similar arguments may be possible. Otherwise, the ability of a T to raise disability where the grounds for possession are mandatory, or where there would normally be no defence (eg sub-letting) are severely limited. In most cases, assuming there has been no direct discrimination (ie the disability was not the motive for seeking possession), then it will be extremely difficult to use disability as an argument in possession proceedings. See commentary on Lewisham v Malcolm [2008] UKHL 43 in [2008] SJ 29 July 17.