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London Borough of Lewisham v Malcolm

[2008] UKHL 43, House of Lords

A House of Lords decision in June 2008 has overturned long-established case law on 'disability-related discrimination'. For the time being at least, it seems this ground will be of relatively little use to claimants, who will instead seek to argue cases as a breach of the duty to make reasonable adjustments.

A person with schizophrenia had a secure tenancy of a flat, and was exercising his right to buy it from the council. Before his purchase was completed however, he sublet the flat. This meant that he lost the secure tenancy. The council served notice to quit and brought proceedings for possession of the flat.

The tenant argued that the subletting was caused by his schizophrenia, which involved a susceptibility to distortions in thinking. The council was therefore seeking possession for a reason related to his disability, in breach of the DDA.

Held by the House of Lords: there was no breach of the DDA. The most important reason for this was that in deciding whether the tenant had been treated less favourably, the court must compare his treatment by the council with that of any other tenant who had sublet. Since the council would also seek possession from other tenants who had sublet, there was no discrimination.

The House of Lords also held that to discriminate for a reason related to a disability the person needed knowledge of the disability. However, it is unclear what extent of knowledge is necessary, and whether knowledge can be imputed if the person ought reasonably to have known.

The full House of Lords judgment is available on www.bailii.org/uk/cases/UKHL/2008/43.html

Importance and implications of the decision

This decision overturns the previous interpretation of 'disability-related discrimination' (ie less favourable treatment for a reason related to a disability) laid down by the Court of Appeal in Clark v Novacold. Disability-related discrimination is now likely to be much less useful to claimants - it seems barely wider than direct discrimination.

Example: Say a person is expected to be off work for about a year due to their disability, and the employer dismisses them because of this absence:

Under Clark v Novacold, this could be disability-related discrimination. The reason for the dismissal was the expected absence, and the treatment of the disabled person was compared with the treatment of a person who would not be absent. The latter would not have been dismissed, so the disabled person had been treated less favourably. The onus would then move to the employer to show that the dismissal was 'justified' under the DDA, and whether he could do so would decide whether the dismissal was lawful or not.
Under the House of Lords decision in London Borough of Lewisham v Malcolm, there would be no disability-related discrimination in this example. The treatment of the disabled person is compared with how the employer would treat another person who was going to be absent from work for a similar period. Assuming the other person would be dismissed as well, there is no less favourable treatment of the disabled person. The court does not even get to look at whether the dismissal is 'justified' or not.

Does the decision apply to employment, goods and services etc?

This example assumes that the House of Lords decision extends to employment. The case before the Lords involved the DDA rules on provision of premises. However, the rules on employment, provision of services etc, include identical wording. Furthermore at least some of the Law Lords seemed to think that their interpretation would - or would probably - apply equally to employment and the provision of services.

Possible arguments against the decision applying beyond provision of premises include:

in the case of education and employment, current rules having been enacted only after the decision in Clark v Novacold, so Parliament presumably knew of the Court of Appeal interpretation and assumed the courts would use it;
some provisions on employment (direct discrimination) and education (competence standards discussed below, and again direct discrimination) making little sense under the new interpretation;
justification defences elsewhere being wider than that for provision of premises;
the requirement that the courts to take into account Codes of Practice when interpreting the DDA.

However, the tribunals are likely to treat the decision as extending to employment, goods and services etc unless and until the issue is decided either way by the House of Lords in a future case (or the law is amended - see 'Where now?').

Reasonable adjustment duty becomes much more important

In nearly every case that would previously have been seen as disability-related discrimination, there is also a breach of the duty to make reasonable adjustments. It will be important to argue the reasonable adjustment duty and be imaginative with that, as well as pleading disability-related discrimination. Issues may be the need to show that the damage flows from breach of the reasonable adjustment duty, and whether time limits for making a claim may be different.

For example, it will probably no longer be disability-related discrimination if a restaurant with a 'no dogs' policy refuses to admit a blind person with their guide dog. This was an example discussed by the Law Lords. However, the blind person may well have a claim for breach of the reasonable adjustment duty if the restaurant fails to let in the dog on which the blind person depends.

Also the harrassment provisions may often be useful in employment cases which were previously pleaded as disability-related discrimination, and the disability equality duty applies to public authorties.

Examinations - a special problem?

If the House of Lords decision does apply in education, I think it could create a particular problem when claiming against discriminatory competence standards in examinations. A specific carve-out means the reasonable adjustment duty cannot help here.

For example, an oral exam might aim to test 'fluency' or 'clarity of speech'. Use of these competence standards may well disadvantage a person who stammers. The DDA lays down a special 'justification' test which competence standards must meet. However the test only becomes relevant as a defence to 'disability-related discrimination'. If there is no disability-related discrimination (or direct discrimination, which by definition cannot be justified anyway), the person has no claim. Therefore, if the House of Lords' limited version of disability-related discrimination applies in this context, it could be much more difficult to even get to the stage of assessing whether a competence standard is 'justified'.

Can the reasonable adjustment duty help here? Unfortunately not. The reasonable adjustment duty only applies to the process of assessing a competence standard, not to whether the competence standard should be applied (see eg oral assessments, post-16 education rules, examining boards). If the House of Lords interpretation applies, it may form a barrier to legitimate claims against the application of a discriminatory competence standard. The disability equality duty might help but is by no means a satisfactory substitute.

Of course, a court may be reluctant to interpret the law in this way to deprive it of its intended effect.

Why the decision?

Basically, the DDA rules on provision of premises are drafted in such a way that they would not give a satisfactory outcome whichever way the House of Lords had decided.

The justification defence for landlords is restricted. The landlord would very often be barred from regaining possession even where it is reasonable that he do so - eg even where the tenant is (because of a disability) months or even years behind with the rent. Similarly, in the Malcolm type of case where the tenant had sublet (because of the disability), the DDA would not have allowed the court to balance whether or not the landlord should be allowed to regain possession.

This perceived unfairness to the landlord led the House of Lords to its decision, which is likely to ricochet across to other areas of the DDA where the previous Clark v Novacold test has been working satisfactorily.

Where now?

Immediately, claimants will be relying much more on breach of the reasonable adjustment duty, as mentioned above. (However, the scope for this is more limited in the case of educational examinations.)

There may well be a House of Lords decision in the future as to whether the same interpretation applies to employment, provision of goods and services, education etc.

In the meantime though, disability charities are likely to campaign for a change in the law (perhaps more urgently than the Equality Bill) to restore the Clark v Novacold test while extending the justification defences available to landlords. The Office for Disability Issues has said that it will consult on the Government's response to the House of Lords ruling, and the consultation is likely to take place before the end of 2008 (source: ODInsight Issue 07, November 2008).

Impact on stammering

I may add more on this. However, an initial thought is that although the decision can clearly affect stammering, in practice pretty much all the cases I know which have been won by a person who stammers so far were in any event reasonable adjustment cases. The reasonable adjustment duty is not affected by the House of Lords decision. Indeed, if disability-related discrimination remains limited, there may well be pressure on the courts to expand the reasonable adjustment duty.

Given the importance of examinations, the possible lack of a right to question discriminatory competence standards as discussed above is a major concern.

Employment: Basic Rules
Employment: Reasonable adjustment rules

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