6.13Lewisham LBC v Malcolm [2008] UKHL 43, (2008) 11 CCLR 573
In this case, the tenant’s breach of contract was not caused by his disability; the landlord had not sought possession for a reason connected with his disability and, in any event, he had not been treated differently than a tenant without that disability who had committed the same breachWednesbury unreasonableness:disability discriminationWednesbury unreasonableness:no different treatment, where there has beenWednesbury unreasonableness:sub-letting
Facts: Mr Malcolm was a secure tenant of Lewisham but Lewisham brought possession proceedings against him, on the ground that he had sub-let his flat. Mr Malcolm defended proceedings on the basis that he was a disabled person, that the sub-letting flowed from his disability and that it would be incompatible with sections 22 and 24 of the Disability Discrimination Act 1995 to make a possession order.
Judgment: the House of Lords (Lords Bingham and Scott, Lady Hale, Lord Brown and Lord Neuberger: Lady Hale partially dissenting) held that it would not amount to discrimination in breach of the Disability Discrimination Act 1995 to make a possession order against Mr Malcolm, albeit that he was a disabled person: first, on the facts, Mr Malcolm had not sub-let because of his disability; second, the landlord had not sought possession for a reason that related to Mr Malcolm’s disability but because he had sub-let his flat; and third, the correct comparator for deciding whether Mr Malcolm had been treated less favourably than others was a person without a mental disability who had sub-let in breach of contract: such a tenant would also have been evicted, so there was no discrimination; fourth, since the landlord had not known of Mr Malcolm’s disability, that could not have played a part in the landlord’s thinking and statutory discrimination could not have occurred.
Comment: section 15 of the Equality Act 2010 (not in force at the time) requires an adjusted approach, providing that the tenant’s actions do, on the facts, stem from their ‘
disability’ and the landlord knew, or reasonably ought to have known, of the disability: where the tenant’s actions arise out of their disability it will be unlawful to treat them unfavourably unless that is a proportionate means of achieving a legitimate aim. That seems to by-pass the need to identify a specific comparator in the way chosen in
Malcolm: see
Akerman-Livingstone v Aster Communities Ltd, below at para
6.18.
1[2015] UKSC 15, [2015] 2 WLR 721.