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London Borough of Lewisham v Malcolm

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Last updated 4th August 2012 (part update 9th February 2022).

A House of Lords decision in June 2008 overturned long-established case law on ‘disability-related discrimination’ under the Disability Discrimination Act 1995 (DDA). The decision substantially reduced the usefulness of that type of claim. In Northern Ireland the decision still applies, so claimants instead have to try and argue cases as a breach of the reasonable adjustment duty for example, and there is a particular problem as regards exams. In the rest of the UK the government rectified the position through the Equality Act 2010 by introducing discrimination arising from disability.

House of Lords, 2008. Full judgment: www.bailii.org/uk/cases/UKHL/2008/43.html.

Facts and decision

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 how any other tenant would be treated if they sublet. Since the Council would also seek possession from other tenants who 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.

Rectification by Equality Act 2010

There are provisions in the Equality Act 2010, mainly discrimination arising from disability, which rectify the position as from 1st October 2010 in Great Britain (ie England, Wales and Scotland).

However those provisions do not apply in Northern Ireland, where disability discrimination protection is still restricted by the Malcolm decision.

Importance and implications of the decision in Northern Ireland

What was the effect of the Malcolm decision in the UK generally before remedied by the Equality Act from October 2010, and still currently in Northern Ireland?

The Malcolm decision overturned the previous interpretation of ‘disability-related discrimination’ (i.e. less favourable treatment for a reason related to a disability) laid down by the Court of Appeal in Clark v Novacold.

To take the example of employment, under s.3A DDA (which still applies in Northern Ireland) an employer discriminates against a disabled person if:

  • for a reason which relates to the disability, he treats the person less favourably than he treats or would treat others to whom that reason does not or would not apply: and
  • the employer cannot show that the treatment in question is justified.

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. This reason fell within s.3A because the absence was related to the disability. 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 then moved to the employer to show that the dismissal was ‘justified’ under the DDA. Whether the employer could show this would decide whether or not the dismissal was lawful.
  • Under the House of Lords decision in Malcolm, there is 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’.

After Malcolm, ‘disability-related discrimination’ (which now applies only in Northern Ireland) is no longer of real use to claimants. It has roughly the same scope as direct discrimination (see JP Europe Ltd v Chweidan (link to bailii.org), Court of Appeal, 2011). This means that the DDA’s ‘justification’ defence is no longer (or hardly ever) relevant. There is no justification defence for direct discrimination, so the defence would only apply if there is any disability-related discrimination which is not direct discrimination.

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

The courts in Great Britain said ‘yes’. The facts before the House of Lords involved the DDA rules on provision of premises. However, the DDA rules on employment, provision of services etc, included – and in Northern Ireland still include – identical wording, as does the 2005 Order setting out the Northern Ireland rules on education. For discrimination which happened before October 2010 in Great Britain – and so far as I know still now in Northern Ireland – the courts have treated the House of Lords decision as applying equally to other parts of the DDA.

Reasonable adjustment duty and harassment became much more important

In many cases which would previously have been seen as disability-related discrimination, there may also be a breach of the duty to make reasonable adjustments. It became important to argue the reasonable adjustment duty and to be imaginative with that. Other types of claim such as harassment may also apply.

This is now only relevant to Northern Ireland, and so is discussed further on Types of discrimination are more limited in Northern Ireland.

Exams – a special problem in Northern Ireland?

The reasonable adjustment duty in Northern Ireland seems to apply alright to how a competence standard is assessed. However it is unclear whether a competence standard which applies to everyone but unjustifiably puts disabled people at a disadvantage can itself be unlawful discrimination. There are arguments, I think, that Malcolm does not apply in that situation, so that the competence standard can be unlawful discrimination. See Education: disability discrimination in NI>Exams, and particularly Education: disability discrimination in NI>Competence standards: are the Northern Ireland rules ineffective?

Why the decision?

The DDA rules on provision of premises were 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 was restricted. The landlord would very often be barred from regaining possession even where it was reasonable for him to do so, e.g. even where the tenant was (because of a disability) months or even years behind with the rent. Similarly, where – as in the Malcolm case itself – the tenant has 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 seems to have led the House of Lords to its decision, but it ricocheted across to other areas of the DDA where the previous Clark v Novacold test had been working satisfactorily.

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