London Borough of Lewisham v Malcolm & Anor

There is a very large number of people in the United Kingdom with disabilities. The Disability Discrimination Act 1995 (“the DDA 1995”), the Disability Rights Commission Act 1999 (“the DRCA 1999”) and the Disability Discrimination Act 2005 (“the DDA 2005”) are important statutes which together contain provisions designed to help reduce discrimination against such people and to require persons having dealings with them to accommodate their needs. In particular, the DDA 1995 defines a disabled person and contains prohibitions on discrimination in relation to the supply of goods, facilities and services and in relation to premises. Thus the DDA 1995 makes it unlawful for a person who manages any premises (whom I shall call a “landlord”) to discriminate against a person with a disability who occupies those premises “by evicting [him] or subjecting him to any other detriment” (s 22(3)(c)). This court has previously held, in a case where the court has a discretion as to whether to make a possession order, that if the tenant can show that the landlord’s conduct amounted to unlawful discrimination under the DDA 1995, that factor was a factor to be taken into account when the court was determining whether it was reasonable to make an order of possession (Manchester City Council v Romano[2005] 1 WLR 2775 at [63]).

However, this court has never considered the case where the landlord seeks possession on ground where the court has no discretion to refuse the order. This court in Romano expressed the view that that case presented “more formidable interpretive difficulties” ([119]). This appeal is such a case. Thus the principal issue on this appeal is whether s 24(3)(c) applies to protect an occupier with a disability who has lost his security of tenure and become a tenant under a contractual tenancy, and against whom the landlord, having served a notice to quit, brings possession proceedings. In that situation, absent the DDA 1995, the landlord has a right in law to possession, and the court has no discretion to withhold a possession order. There are other issues, which I describe below ([34]).

Before I analyse the issues, I need to set out certain matters by way of background, namely the factual background in this case, the relevant legislation, the code of guidance given by the Secretary of State pursuant to the DDA 1995 and the codes of practice issued by the DRC, the judge’s judgment and the intervention of the Disability Rights Commission (“the DRC”) on this appeal. I will then set out each of the issues and summarise my conclusions on them. After that I will set out in detail my reasons for my conclusions, and, finally, the order that I would make on this appeal.

The appellant, Mr Malcolm, was diagnosed with schizophrenia in 1985. Between 1985 and 1990 Mr Malcolm had some ten admissions to hospital, two of them being compulsory admissions under the Mental Health Act. His condition then stabilised on medication. From 1990 onwards, he consistently held employment, including a period of time as an employee of the respondent, whom I shall call Lewisham. His condition remained stable on depot injections. That means, as I understand it, that he was given injections to control his schizophrenia in a form which permitted gradual absorption of the drug injected over a long period.

In January 2002, Mr Malcolm signed a tenancy agreement with Lewisham in respect of Flat 4, 15, Waldron Road, London SE23 2PW (“the flat”). The tenancy commenced on 4 February 2002. Mr Malcolm had previously been a tenant of Lewisham in respect of another property. The tenancy of the flat was a secure tenancy for the purposes of s 79 of the Housing Act 1985 (“HA 1985”). It is a fundamental feature of a secure tenancy that the tenant occupies it as his only or principal home. It follows that he cannot sublet it without the consent of the local authority. This is reinforced by s 93 of the HA 1985 (set out below) which provides that security of tenure is permanently lost by an unapproved subletting. Mr Malcolm's tenancy agreement clearly stated that he could not sublet without Lewisham's consent and that the effect of subletting without consent would be that his tenancy ceased to be secure and that his tenancy could not again become a secure tenancy.

Mr Malcolm was entitled to exercise the right to buy his flat and he exercised the right in March 2002. The process of completion was delayed. In January 2004, at a time when the purchase had still not been completed, he applied for a mortgage. On 20 May 2004, when the purchase had still not been completed, he instructed letting agents to find tenants for the flat. On 22 June 2004, he sublet his flat. Lewisham had not given its consent to this subletting, and accordingly Mr Malcolm's tenancy thereupon ceased to be a secure tenancy and could not thereafter regain that privileged status.

In October 2003, that is, in the autumn of the previous year, Mr Malcolm's medication had been changed from depot injections to oral medication. Mr Malcolm's mother, sister and brothers all gave evidence that his behaviour changed. On 25 March 2004, environmental protection officers visited the flat, because of noise emanating from it, and a noise abatement notice was served. The officers recorded that they smelt drugs, that Mr Malcolm was abusive and aggressive and that he said that he did not know who the officers were while at the same time stating that he would not accept the noise abatement notice that they had given and explained to him.

In April 2004, those treating Mr Malcolm discovered that he had not been taking his oral medication, probably from the latter part of 2003.

In May 2004, Mr Malcolm’s employment with a housing association ceased.

On about 14 May 2004, Mr Malcolm applied for housing benefit and jobseeker's allowance.

On 15 June 2004, Mr Malcolm made a claim on the contents insurance policy for his flat for some £9,000. He contended that his flat had been burgled.

On 27 June 2004, Mr Malcolm's solicitors sent to Lewisham a transfer in relation to the property, signed by him and stating that he wished to complete the transaction on 26 July 2004.

Lewisham discovered that Mr Malcolm had sublet his flat on 6 July 2004. As he had not then completed the purchase, Lewisham gave him notice to vacate the flat on 9 August 2004. On 2 December 2004 Lewisham issued these proceedings for possession, relying on the notice to quit.

S 93 of the HA 1995 provides:

may allow any persons to reside as lodgers in the dwelling-house, but

will not, without the written consent of the landlord, sublet or part with possession of part of the dwelling house.

I now set out the material provisions of the DDA 1995, as amended by the DDA 2005. There are three groups of provisions that are relevant. Guidance issued by the Secretary of State and the DRC supplement some of these provisions.

S 1 provides:

Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

In this Act “disabled person” means a person who has a disability.”

S 1 refers to schedule 1 to the DDA 1995 (as amended by the DDA 2005). Para 2 deals with the meaning of the long-term effect of an impairment:

it has lasted at least 12 months;

the period for which it lasts is likely to be at least 12 months; or

it is likely to last for the rest of the life of the person affected.

Para 4 of schedule 1 to the DDA 1995 deals with the meaning of the ability to carry out normal day-to-day activities:

Para. 6 of schedule 1 to the 1995 Act explains the approach to be taken if a person is on medication or has some aid, such as a voice synthesiser:

Various paragraphs of schedule 1 provide for the Secretary of State to make regulations, and the Secretary of State has made the Disability Discrimination(Meaning of Disability) Regulations 1996 (SI 1996/1455). None of these regulations is relevant on this appeal.

S 22 defines prohibited discrimination in relation to premises. It prohibits discrimination in relation to the initial disposition of the premises and then it prohibits various acts in the management of the premises:

S 24 sets out the meaning of discrimination for the purposes of s 22. The section defines discrimination and then places the onus of proving justification on the defendant:

In this case, if its action in seeking possession against Mr Malcolm would otherwise amount to discrimination, Lewisham does not seek to say that it can establish the conditions necessary for justification. This means that it is unnecessary to set out any further provisions about justification. But it is to be noted that in this context justification is a defence to discrimination against a person with a disability, whether that discrimination is direct or indirect. This is not the position in relation to other forms of discrimination such as sex discrimination. Justification is not at large. It must meet the statutory conditions.

Where one person discriminates against another in a way that is made unlawful by the DDA 1995, the victim may bring civil proceedings in the county court (s 25(1)). He may seek damages, and for this purpose damages can include compensation for injury to feelings, limited to the prescribed amount (see s 25(2) and para 7 of schedule 3 to the DDA). A person who knowingly aids another to do an unlawful act is treated for the purposes of the DDA 1995 as himself doing the same kind of unlawful act and may be sued under s 25 ( ss 25(1)(b), 57(1)). Except as provided by s 25, no civil or criminal proceedings, other than judicial review proceedings, can be brought against any person in respect of an act merely because an act is unlawful under section 22 or 24 (para. 5 of schedule 3 to should to the DDA 1995). That must mean that a criminal offence could be committed (for example) if a conspiracy to contravene the Part III of the DDA were established.

The DDA does not provide for a person to rely on the DDA 1995 by way of a defence to a claim. Nor on the other hand does it prohibit a person from relying on the DDA by way of a defence. In Romano, this court held that where a tenant under a secure tenancy or an assured tenancy wishes to assert that his landlord has, contrary to the DDA 1995, discriminated against him in bringing possession proceedings, the tenant should assert that matter as part of his defence to the possession proceedings, rather than bring a counterclaim for a declaration or an injunction ([63]).

S 3 of the DDA 1995 enables the Secretary of State to issue guidance as to the matters to be taken into account in determining whether an impairment has a substantial adverse effect on a person's ability to carry out normal day-to-day activities or whether such an impairment has a long-term effect. A court determining these issues must take into account any guidance that appears to it to be relevant.

The Secretary of State issued a code of guidance (referred to below as “the code of guidance”) under s 3 of the DDA 1995. The parts of the code of guidance that are relied on provide:

The Secretary of State has issued new guidance that came into force on 1 May 2006 (SI 2006 No 1005). This was after the judge gave her judgment, and accordingly we have not been concerned with it.

S 53A of the DDA 1995 as amended by the DRCA 1999 now gives the DRC statutory power to issue a code of practice giving practical guidance on how to avoid acts which are unlawful under the sections with which we are concerned. The court must take into account any provision of a code of practice which appears to be relevant (s 53A (8A)). On 27 May 2002, the DRC issued a code of practice, entitled Rights of Access: Goods, Facilities, and Services and Premises. It is not necessary for me to refer to this as none of the parties has relied on it save insofar as it merely explains summarises the provisions of the DDA 1995. The DRC has also issued a new code of practice on employment and occupation. I need not refer to that document as counsel have not relied on it. The DRC has also issued a code of guidance entitled Rights of Access: Services to the Public, Public Authority Functions, Private Clubs and Premises. This came into force on 4 December 2006. It is not necessary for me to refer to it as it was issued after the judge’s judgment and counsel has not asked us to consider any of it.

At the trial before HHJ Hallon sitting in the Bromley County Court, Mr Malcolm contended that his condition amounted to a disability under the DDA 1995 and that changes in his treatment led him to make irrational decisions. On 6 March 2006, the judge gave a long judgment and made an order for possession. I deal with the judge's reasoning under the various issues as far as material to the issues on this appeal when I deal with those issues below. In summary, the judge held that the DDA 1995 did not apply because Mr Malcolm had lost his security of tenure. Moreover, the judge also held that in any event Mr Malcolm was not “a disabled person” for the purpose of s 1 of the DDA 1995, and that his actions were not caused by his disability. The judge further inclined to the view that there would be no discrimination by Lewisham against Mr Malcolm unless Lewisham had knowledge of his disability.

It is no part of Mr Malcolm’s case that he did not have capacity to sublet the flat. As the case of Re C (Adult: Refusal of Treatment)[1994] 1 WLR 290 shows, a person may have capacity notwithstanding that he has schizophrenia. As the judge pointed out in her judgment, different considerations would have arisen if he had not had the capacity to enter into a contract of subletting.

It is apparent that this was a complex case on which the judge was asked to deal with a large number of difficult and novel issues. Although I have disagreed with certain of the judge’s conclusions, I have found the judgment clearly presented and reasoned, and that factor has undoubtedly assisted this court in its deliberations.

This court has given the DRC permission to make oral and written submissions on this appeal. The DRC was created by s 1 of the DRCA 1999, and its functions include working towards the elimination of discrimination against disabled persons.

As I have indicated in para 1 above, the principal issue (issue (i)) is: Can Mr Malcolm rely on s 22(3)(c) of the DDA 1995 in answer to Lewisham’s claim to possession given that Lewisham has an immediate right to possession and the court has no discretion to withhold the possession order? Issue (ii) relates to Mr Malcolm's disability. There is no doubt that Mr Malcolm has a long-term mental impairment. The question is: was the judge wrong to hold that Mr Malcolm’s mental impairment did not have a substantial adverse effect on Mr Malcolm’s ability to carry out normal day-to-day activities for the purpose of the DDA 1995? That leaves two further issues, which relate to causation and knowledge respectively. Issue three relates to causation. If s 22 applies, the court has to consider the application of s 24 and then the statutory question is whether “for a reason which relates to the disabled person’s disability” Lewisham, by making a claim for possession, “treats [Mr Malcolm] less favourably than he treats or would treat others to whom that reason does not apply” for the purpose of s 24(1) of the DDA 1995. The formula “for a reason which relates to the disabled person’s disability” contains two elements. One element is Lewisham’s reason for taking possession proceedings, which was the subletting with its automatic security of tenure stripping consequence, and the second element is the relationship, if any, between the act of subletting and Mr Malcolm’s disability. The subletting must be “related” to Mr Malcolm’s disability. It is common ground that that latter element requires the court to consider whether an appropriate causal link exists between the subletting and Mr Malcolm’s disability. So I would formulate issue (iii) as follows: was the judge wrong in law not to hold that Lewisham’s reason for starting possession proceedings, namely Mr Malcolm’s subletting, was “related” to his disability for the purposes of s 24(1)(a) of the DDA 1995? Issue (iv) relates to the requirement, if any, for Lewisham to have knowledge of Mr Malcolm's disability. Lewisham contends that it could not under the DDA 1995 have discriminated against Mr Malcolm because it did not know of his disability. Accordingly, I would formulate issue (iv) as follows: should the judge have concluded that Lewisham’s lack of knowledge of Mr Malcolm’s disability at the time of any alleged discrimination would be relevant to determining whether there was discrimination for the purposes of s 24 of the DDA 1995?

These issues arise under a combination of s 22 and s 24 of the DDA 1995. During argument, Longmore LJ drew attention to the statement by Richards LJ in Richmond Court (Swansea) Ltd v. Williams[2006] EWCA Civ 1719 at [41] that s 24 of the DDA 1995 requires one “(i) to identify the treatment of the disabled person that is alleged to constitute discrimination, (ii) to identify the reason for that treatment, (iii) to determine whether the reason relates to the disabled person's disability, (iv) to identify the comparators, namely persons to whom that reason does not or would not apply, and (v) to determine whether the treatment of the disabled person is less favourable than the treatment that is all would be accorded to the comparators.” (Richards LJ added that that approach was laid down in Clark vNovacold Ltd [1999] ICR 951 and Romano). It may be helpful if I explain the relationship of my list to that given by Richards LJ in the Richmond case. In this case, the first question is whether section 24 applies at all (issue (i) above) and accordingly the main issue in this case does not appear in the list of issues in the Richmond case. Issues (i), (ii) and (iv) identified by Richards LJ do not, on the facts, arise here. It is common ground (subject to issue (iv) in this case) that the treatment alleged to constitute discrimination is Lewisham’s claim for possession, although there has been some argument as to whether the notice to quit would also constitute unlawful discrimination. Likewise, it is common ground that the reason for that treatment was the subletting by Mr Malcolm. It is also common ground that the comparators are tenants who have security of tenure. Issue (iii) in the Richmond case may be compared with issues (ii) and (iii) in the present case but as explained above the issue whether the reason for the alleged discriminatory treatment has more than one element. Issue (iv) in this case was not identified as an issue in the Richmond case.

Thus I respectfully conclude that while the statement of issues arising under s 24 in the Richmond case, for which I am indebted to Longmore LJ, is a useful starting point it should not be taken as a comprehensive statement of the processes of reasoning to be gone through in determining whether there has been unlawful discrimination in relation to premises for the purposes of the 1995 Act or as providing a template of issues for every case.

The issues on this appeal and the conclusions which for the reasons set out below I have reached on them, are as follows:

I take each of the issues on this appeal in turn:

It may be helpful if I explain the organisation of my reasoning on this issue. I start with an introduction in which I summarise the basic case of each party on this issue. With the benefit of the parties’ submissions, I then turn to the interpretation of s 23 (3) (c) of the DDA 1995. In my judgment, that provision is unqualified. It both prohibits discrimination and makes it unlawful. Nothing in s 93(2) of the HA 1985 (set out above), on which Lewisham relies, states that the landlord has a right to possession, still less a right to possession notwithstanding any enactment to the contrary. My conclusion is also supported by the purposive approach, because, if the DDA 1995 is qualified as Lewisham submit, the operation of the DDA 1995 would be restricted in this particular situation for no obvious policy reason. I then explain that my interpretation is consistent with Romano. It is also consistent with the fact that Parliament has made discrimination that cannot be justified “unlawful”. I then deal with some miscellaneous points.

In this case, Lewisham relies upon its contractual right to possession on giving notice to quit. This is not therefore a case where the court has discretion as to whether or not to make a possession order. Mr Malcolm’s subletting had the effect under s 93 of the HA 1995 of terminating his secure tenancy and the tenancy became a mere contractual tenancy.

Since Mr Malcolm tenancy is not a secure tenancy, it can only be a contractual tenancy. Such a tenancy is terminable on service of a notice to quit. The judge rejected Mr Malcolm's case because she considered that it was going too far to say that s 93(2) did not apply if the subletting was by a person with a disability ([29]). That basically is the case for Lewisham on this appeal. Thus, Mr James Goudie QC, for Lewisham, submits on this appeal that Romano only applies where there is a subsisting secure tenancy. That is not the case where there has been an unapproved subletting and therefore the court is not required to examine the reasonableness of the order for possession. He further submits that the HA 1985 is not capable of being interpreted to provide Mr Malcolm with a defence, and likewise neither does a combination of the HA 1985 and the DDA 1985 give him that defence. Mr Goudie submits that the proper inference from s 93 is that Parliament for sound reasons ( including the need to conserve the local authority’s housing stock) decided that all tenants who part with possession should lose security of tenure. No distinction is made based upon the reason for this letting. Accordingly, there is no exception for the case where the tenant has lost security of tenure by reason of an act related to his disability.

Mr Sylvester Carrott, for Mr Malcolm, comes to this issue from the perspective of the DDA 1995. He submits that the judge was wrong to distinguish Romano. The judge, in effect, read a qualification into ss 22 and 24 of the DDA 1995 to the effect that they do not apply unless the disabled occupier had security of tenure. Mr Carrott submits that Romano reflects a much broader interpretation of the DDA 1995 than that applied by the judge.

Mr Robert Latham, for the DRC, submits that the DDA 1995 can provide a defence where a disabled person is able to establish that the landlord is unable to justify his conduct. Moreover, if a judge were not permitted to refuse an order for possession in these circumstances, the purpose of the legislation would be defeated.

It is common ground that where a landlord seeks a possession order against the tenant he is subjecting the tenant to eviction or “any other detriment” for the purpose of s 22(3)(c) if that section is otherwise applicable.

I have explained already that Romano does not decide whether the DDA applies in the situation in the present case. Accordingly, I propose to set up my conclusions on interpretation without at this point reference to that decision. I shall then explain why in my judgment nothing in that decision affects my conclusions.

It is relevant to bear in mind that the DDA 1995 is one of a group of statutes that prohibits discrimination. These are very important statutes. In Ghaidan v Godin-Mendoza[2004] 2 AC 557 at[132], Baroness Hale held that:

Likewise in this court in the same case [2003] Ch 380 at [19], Buxton LJ held:

It follows that the court should not construe statutes prohibiting discrimination restrictively in the absence of clear language or necessary implication. In my judgment this is the approach which Mummery LJ adopted in his judgment in Novacold, to which I refer in more detail below.

In this case, the issue is one of statutory construction and accordingly it is important to focus on the words that Parliament has used. Mr Goudie submits that s 93(2) is totally unqualified. No exception is made for the case where the tenant parted possession because he was acting under a disability. That is so, but by the same token s 93 does not deal with the right to possession. That is left to be governed by the general law. Accordingly, there is no reason why Parliament should when in enacting the DDA 1995 have qualified s 93(2).

S 22(3) (c) is also unqualified. It does not say that it is unlawful for a landlord to discriminate against a disabled person by evicting him only if the tenant has security of tenure. On the contrary, the provision is totally unqualified and it is expressed in the powerful language of unlawfulness. Moreover, it is difficult to see what policy reason there could be for Parliament restricting s 22(3)(c) to cases where the tenant has security of tenure. I accept that s 93 evidences a clear statutory intention that subletting should lead to loss of a secure tenancy. But it is not clear that Parliament intended this policy to prevail over the policy behind the DDA 1995 that landlords should make adjustments for actions by disabled people by reason of their disability and should not evict tenants with a disability without justification. In my judgment, to achieve the result that the policy in s 93(2) is to prevail over that in s 22(3)(c), there would have to have been some qualification written into s 22(3)(c).

Parliament has sought to protect disabled people against whom landlords discriminate improperly when letting their property: s 22(1). The protection is widely drafted. It would have been odd to confer this protection without at the same time conferring protection in respect of discriminatory acts which lead to the termination of the tenancy. This point provides some further support for the conclusion that I have reached on interpretation.

Mr Latham referred the court to two County Court decisions. The first was that dated 29 April 2005 of District Judge Wright sitting in the Liverpool County Court in Liverpool City Council v Slavin (Legal Action, July 2005, page 28). In that case the court held that the DDA 1995 prevented the local authority landlord from enforcing a possession order which had been suspended on terms which were breached were the defendant suffered from a mental disability. The court held that the decision to evict was not justified on the basis that eviction was necessary to protect the health of others. The second case is the unreported decision dated 17 February 2007 of District Judge Silverman sitting in the Edmonton County Court in Community Housing Association v Wye. The judge held that the service of a notice terminating a tenancy and the issue of proceedings against a tenant who had a personality disorder was rendered unlawful by the DDA 1995 and refused to make a possession order accordingly even though possession was sought under s 21 of the Housing Act 1988, which applies to assured shorthold tenancies and under which the court had no discretion. It is not necessary for me to make any comment on these decisions in case they are the subject of appeals but Mr Latham makes the point that they demonstrate that the courts are adapting to the DDA 1995 without insuperable difficulty.

The decision of this court in Romano is the source of the submission that s 22 (3)(c) only applies to some cases because, as I explained in para 1 of this judgment, this court made it clear that in that case it was confining its decision to a situation where the court had a discretion not to make the possession order. This court expressed considerable doubts about the situation if the court has no discretion to withhold possession as in a case where there is no security of tenure.

What did Romano decide? The judgment concerns two cases where the tenants held secure tenancies from the local authority landlord. They each had a recognised mental illness. They caused a disturbance to their neighbours. Their tenancies could not be determined, except by an order of the court for possession (s 82 of the HA 1985). The local authority gave notice under s 83 of the HA 1985 and sought possession on the ground that the tenant had been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality. The court can only make an order for possession on this ground (ground 2) if it considers that it is reasonable to make the order (s 84(2)). The tenants relied on the DDA 1995 and contended that they had disabilities for the purposes of the DDA 1995. This court held that even if the tenant were disabled within the meaning of the DDA 1995 the landlord acted reasonably in seeking a possession order. Accordingly, the treatment of the tenants could be justified, and there was no unlawful discrimination.

As I explained in para. 1 of this judgment, this court distinguished the case where the court had no discretion to withhold an order for possession and left open the question whether and if so how the DDA applied to such cases ([119]).

This court in Romano further held that the DDA 1995 did not expressly create a defence to the possession claim, but that nonetheless the tenant could rely on discrimination as a defence to the possession claim. Brooke LJ, giving the judgment of the court (the other members were Jacob LJ and Sir Martin Nourse), held:

The decision in Romano is of course binding on this court. There is, as I see it, no inconsistency between the conclusion in [64] on the one hand and s 25 and schedule 3 of the DDA 1995 (set out above) on the other. S 25 merely deals with the situation where a claim to discrimination is to be made the subject of proceedings. This does not mean that discrimination cannot be relied upon by way of defence. It is unnecessary for Parliament to set out such matters as the general law governs them. As I explained in HMRC v BUPAPurchasing Limited [2007] EWCA Civ 2117 at [46], Parliament does not necessarily set out matters which are governed by the general law. I would add to the reasons which I there gave the reason that if Parliament were to set out the effect of the general law that might throw doubt upon the application of the general law in some other statute, which is silent about the general law. I see no difficulty, therefore, in Mr Malcolm relying on the alleged discrimination as his defence to the possession claim.

On the face of it, however, there is an inconsistency in overall result between this case and Romano. In Romano, as the above citation shows, this court held that discrimination was a factor that the court could take into account in deciding whether it would nonetheless be reasonable to make the possession order. It follows from that there will be cases where the landlord will obtain an order for possession even though the claim for possession involved treating the disabled tenant differently from his comparators. By contrast, in the case where s 93 applies it follows from the interpretation that I have accepted that the landlord will not be able to obtain a possession order unless justification is shown. My conclusion may therefore be criticised as being inconsistent with the result in Romano. I would not however accept that criticism. It may be that a possession order would only be made in the Romano type of case where what amounts to justification for the purposes of s 24 of the DDA 1995 can be shown. In Romano, there was evidence that continuance of the nuisance was liable to affect the health of the neighbours and for that reason this court accepted that it was reasonable for the trial judges to have made possession orders. The DDA 1995 provides that discrimination is justified if the discriminatory act is needed to protect the health of others: see s 24(3)(a) above.

The earlier decision of David Steel J in North Devon Homes Ltd v. Brazier [2003] HLR 905 is consistent with this approach. That case also concerned the question whether the court should exercise its discretion under the Housing Act 1988 to make a possession order if it considered reasonable to do so. The tenant had a mental illness which led to behaviour affecting neighbours. The judge applied the DDA 1995. He took the view that the DDA 1995 did not bar all evictions but “only those which were not justified in the specific circumstances set out in s 24 of the DDA 1995”. He held that the DDA 1995 “furnishes its own code for justified eviction which requires a higher threshold”, i.e. a threshold higher than that in the Housing Act 1988.

Later, at [113], this court in Romano held that although technically the notice seeking possession might have constituted an act of unlawful discrimination, "it could not have provided a substantive defence at the hearing because the 1995 Act did not in itself invalidate a notice seeking possession." This passage is not, as I see it, part of the ratio. This court drew attention to the fact that the 1995 Act did not itself render the notice invalid, but, in my judgment, that leaves open the question whether, under the general law, the notice would be invalid if the discrimination turned out to be unlawful. In my judgment, in a case such as Mr Malcolm’s, once it is held that the discrimination is unlawful the notice to quit will cease to be a valid notice to quit (see [61] to [65] below). The court cannot then proceed to make a possession order despite the clear terms of the effect of subletting to be found in s 93(2) of the HA 1985.

I have referred above to the power of the language used by Parliament. For, in my judgment, it is significant that s 22(3) does not merely give a disabled occupier a remedy against the landlord if the landlord discriminates against him, but it also makes that act “unlawful”. Schedule 3 provides that no criminal proceedings may be brought merely because the landlord has committed an act of discrimination. However there may be circumstances in which criminal proceedings can be brought. The fact that the conduct is made unlawful, rather than simply wrongful as between the parties, is some indication that Parliament considered that it was a matter of important social policy that the act should be prohibited. By making the act unlawful, Parliament may have prevented landlords from seeking the consent of the disabled occupier to contracting out of the protection of the DDA 1995.

As Bennion explains in the following passage, statute law does not operate in the vacuum but against the backcloth of the general law:

As Halsbury’s Laws of England vol 44(1) on Statutes explains, where Parliament has provided that a particular act is unlawful, the courts will not, in the absence of an intention to the contrary, allow a party to rely on his own wrong:

A large number of cases are cited in the footnotes, including for instance R vChief National Insurance Commissioner, ex parte Connor[1981] QB 758 on the effect of s 24 of the Social Security Act 1975. In my judgment, there is no indication in Part III of the DDA 1995 that the principle that a person cannot rely on his own wrong is not to apply to proceedings which a landlord brings against a tenant.

A significant result of the discriminatory act being made unlawful, in my judgment, is that the court would not lend its assistance to it. The position is not dissimilar from the situation where a party seeks the court’s assistance to enforce a contract to do an act that is rendered unlawful by statute: see generally Chitty on Contracts vol 1, General Principles, 16-141 to 16-156. Moreover, an advocate should draw the attention of the court to the fact that the act relied on by a party is unlawful, if that is the case: Mercantile Credit Co Ltd v Hamblin[1964] 1 WLR 423. That obligation would arise in the case of a possession claim where the tenant has a defence under the DDA 1995, even if the tenant is not present in court to make this point himself. Accordingly, the fact that s 22(3) makes the discriminatory act unlawful supports the conclusion which I have expressed above on the interpretation of that section that there is no exception for the case where the tenant has lost security of tenure under s 93 of the HA 1985.

Mr Goudie submits that if Mr Malcolm had applied for judicial review, different principles would have applied. Moreover, he further submits that the grounds on which any application for judicial review would be based could not be raised as a defence in the civil proceedings unless a private law right was infringed: Avon County Council v Buscott[1988] 1 QB 656. Mr Goudie also submits that, even if a challenge to Lewisham's decision can be made in these proceedings, it must, in accordance with Lambeth LBC v Kay per Lord Brown at [209] and [211], and Doherty v Birmingham City Council per Carnwath LJ at paras [22(3)] and [40] (both cases concerned with art 8(2) of the European Convention on Human Rights), be made on the conventional judicial review basis. As I have explained above, I do not accept this argument because, in my judgment, this court held in Romano that the tenant could rely on discrimination in his defence to possession proceedings. As I have explained above, I respectfully agree with the holding.

Mr Latham and Mr Carrott placed some reliance on art 8 of the European Convention on Human Rights. In the light of my conclusion on statutory interpretation, it is not necessary for me to rule on that argument.

It may be said that it is sufficient if Mr Malcolm is left to his remedy in damages under s25 of the DDA 1995. No counsel suggested this would provide Mr Malcolm with an adequate remedy if Lewisham has committed unlawful discrimination. Even if he is able to defend a possession order, he will not be put back in the position that he was before subletting. But it would be of little assistance to him to have damages, for which he would have the expense and delay of bringing a fresh action.

For the reasons given below, I consider that the judge applied the wrong approach to determine whether Mr Malcolm's mental impairment had a substantial adverse effect on his ability to carry out normal day-to-day activities for the purpose of the DDA 1995. She should have applied the test in the code of guidance which provides that "substantial" for this purpose means other than minor or trivial. She should also have considered the evidence as a whole rather than the evidence simply for the period surrounding the subletting, even though that was a period when Mr Malcolm was not taking medication and therefore the effect of his disability could be measured empirically. In my judgment, when the evidence is considered in the light of the code of guidance, it is clear that this court should substitute for the judge's finding a finding that Mr Malcolm's schizophrenia had a substantial adverse effect on his ability to perform day to day activities, and that accordingly at the time of the subletting he had a disability within the meaning of s 1 of the DDA 1995.

Both this issue and issue (iii) involve appeals against the judge’s findings of fact. Mr Goudie reminded us of the well-known passage from the judgment of Clarke LJ in Assicuriazione Generali SpA. v The Arab Insurance Group[2003] 1 WLR 577 at [14] to [17]. This passage, which incorporates the observations of Mance LJ (as he then was) in Todd v Adam (trading asTrelawney Fishing Co) [202] Lloyd’s Rep 293, was recently approved by the House of Lords in DatecElectronic Holdings Ltd v United Parcel Service Ltd[2007] UKHL 23 (delivered after the period of this appeal). I do not think that I need to set out those passages. Clarke LJ held that the approach of the tribunal to findings of fact would depend on the extent to which the judge had had an advantage over the appellate court. So, where findings turn on oral evidence given by witnesses at trial, an appellate court will be slow to interfere. By analogy, Mr Goudie submits that the judge's findings in this case on the substantiality of the adverse effect of Mr Malcolm’s schizophrenia on the normal day to day activities, and on the issue of the relationship between the subletting by Mr Malcolm and his schizophrenia, turned on the evidence from witnesses which the judge heard and accordingly, this court should be reluctant to interfere. I would accept that submission if the matter turned upon, for example, the credibility of witnesses. In fact, the judge also had to consider contemporary documents and draw inferences from the facts. This court is not significantly prevented from considering those matters by the fact that it has not seen and heard the witnesses gave oral evidence. Moreover, as I have explained, the fundamental reason for holding that the judge was wrong on this issue is that she misdirected herself in law on the approach that she had to take. In those circumstances, the court has to review the findings to see whether it itself can come to conclusion as to what the finding should have been if the correct test is applied.

The code of guidance does not form part of the DDA 1995, but courts are bound to “take [it] into account”, if it appears to be relevant, in determining whether an impairment had a substantial adverse effect on a person's disability to carry out normal activities for the purpose of s 1(1) of the DDA 1995. As set out above, A1 of the code of guidance provides that a "substantial" effect is one that is more than minor or trivial. I have no doubt that A1 is relevant to the question whether Mr Malcolm’s schizophrenia had a substantial adverse effect on his ability to carry out day to day activities. The expression “take into account" does not bind the court to apply the code of guidance into account in every case. The court might for instance take the view that the code of guidance did not go far enough to fulfil the requirements of DDA in any particular case. There would however have to be a good reason for not applying the code of guidance. In my judgment, the guidance that I have quoted is relevant to this case, since it provides the criterion for the substantiality of the adverse effect of an impairment.

Further, no reason had has been advanced as to why the court should not apply that guidance in this case. In Goodwin v Patent Office[1999] ICR 302, 310 Morison J, giving the judgment of the Employment Appeal Tribunal observed that the word "substantial" is potentially ambiguous. In that it might mean "very large” or "more than minor or trivial". The code of guidance resolves this ambiguity in favour of the latter alternative. In my judgment, this was a proper approach to the code of guidance to take. The purpose of s 1(1) of the DDA 1995 is to identify that group of people who are entitled to the protection of the DDA 1995, and, by excluding persons with minor restrictions on their ability to carry out day to day activities who would normally be regarded as not having a disability, it lays down an appropriate test for distinguishing the cases that it may properly be inferred Parliament intended to protect.

In Goodwin at 310, Morrison J. also held that the employment tribunal (in his case) would:

Likewise in Power v Panasonic UK Ltd[2003] IRLR 151, Ms Recorder Slade QC giving the judgment of the Employment Appeal Tribunal held that:

Both these passages are cited in Romano at [33] and [34] but without comment on the reference to the material time appearing in both passages. As Morrison J. explains, the task for the court or tribunal is whether the disability in question had had a substantial adverse effect on the relevant person's ability to carry out normal day-to-day activities. This has to be considered at the time of the relevant events under consideration. But it does not mean to say that evidence as to ability at other times is excluded. On the contrary, in evaluating that effect, the court or tribunal will take into account any relevant event from any other period and ask whether it throws light on question to be determined as part of the normal judicial task of fact-finding. I do not consider that either of the passages cited should be interpreted otherwise.

I need next to explain the judge's findings and process of reasoning. The judge expressed the understandable difficulty that none of the medical evidence dealt specifically with the question of the effect of Mr Malcolm's schizophrenia on his ability to carry out day-to-day activities. Dr Philip Steadman, consultant psychiatrist and joint expert, had prepared a report to the court, dated 19 August 2005, but this did not deal with issues (ii) or (iii) and so did not provide assistance to the judge. The evidence also included a letter dated 8 July 2004 from Mr Clifford, social worker, to Lewisham but this did not provide evidence as to whether Mr Malcolm was able to carry out normal day to day activities when and medicated. In a later letter, dated 9 February 2005, Mr Clifford said that the subletting occurred in a period when Mr Malcolm was unwell and "as a result unlikely to make decisions that were in his best interests or with the full capacity to understand the consequences." There was also a letter dated the 16 February 2005 from Dr Sivathasan, who had treated Mr Malcolm. He stated that:

The judge held (at [33]) that the period with which the court was primarily concerned was late 2003 to July 2004 because this was the period when the defendant was and unmedicated and would therefore show Mr Malcolm when most affected by his illness.

The judge summarised the evidence given by Mr Malcolm's family as follows([39]):

The judge considered section C of the code of guidance, and noted among other things that the code of guidance stated that account should be taken of whether the person is inclined to neglect the basic functions such as eating, drinking, sleeping, keeping warm or personal hygiene ([40]). The judge noted that there was no independent evidence about the circumstances in which Mr Malcolm lost his job with the housing association. The judge then concluded that on the evidence as a whole she was unable to say that there was a substantial adverse effect and that therefore Mr Malcolm did not come within the definition of a disabled person as set out in the DDA 1995:

The judge then turned to deal with issue (iii). In the course of doing so, she made further findings relevant to the issue of Mr Malcolm's ability to carry out normal day-to-day activities. The judge noted that although Dr Steadman did not see the Mr Malcolm at the time he was unmedicated and did not have access to his medical notes, he had stated in his report to the court that in his opinion Mr Malcolm would not have properly understood the consequences of the subletting. In considering issue three, the judge focused on the evidence as to Mr Malcolm's state (meaning, presumably, his mental state) at 22 June 2004 (the date of the subletting). The judge then noted inconsistencies in Mr Malcolm's oral evidence. First, he said in his written statement that his decision-making was irrational and illogical because of his illness and that it was that which led him to make an irrational and wrong decision in relation to subletting. This conflicted with his statement to the investigating officer, also repeated in oral evidence, that he did not know that he was prevented from subletting.

Secondly, he contended in his oral evidence that he did not know that he could not sublet. This conflicted with the fact that he had received a copy of the tenancy agreement at the start of the tenancy and that set out the prohibition on subletting. He had also been a tenant at his previous flat, which would have been governed by a similar provision against subletting.

Thirdly, he disagreed with a statement in Dr Sivathasan’s report that it was Mr Malcolm who asked to change his medication, whereas Mr Malcolm said that it was the doctor who advised him on the change. In his oral evidence, he said that he did not know that there were other medications but in fact he had previously had other medications himself when he had been in hospital and he knew that while he was in hospital other schizophrenics had been prescribed other medications.

Fourthly, when interviewed by Nicola Evans, Lewisham’s housing investigation officer, Mr Malcolm said that he had been living at the property, with his partner and that the subtenant was his friend and that there was no tenancy agreement. Mr Malcolm had said this although Nicola Evans had in her possession a copy of the tenancy agreement and Lewisham had actually found subtenants in occupation.

The judge then concluded that it was not possible to rely on Mr Malcolm's own evidence as to his motivation for entering the subletting and she turned to consider whether there was other evidence as to his mental state as at 22 June 2004. She noted that in the period from 22 March to 27 April 2004 (the period covered by bank statements in evidence) Mr Malcolm managed his bank account in a normal and sensible fashion, and indeed the entries showed that at that time he had continued to run and drive a car. In addition, throughout the period from 9 December 2003 to 27 June 2004, he had instructed his solicitors in relation to the right to buy, including the obtaining of a mortgage, and given them instructions as to the completion date. On 27 December 2003, he signed acceptance of the right to buy offer. On 15 January 2004 he signed the detailed mortgage application form. On 21 December 2003 and 14 May 2004 he completed and signed lengthy housing benefit application forms. He also signed an application to jobseeker’s allowance. On 4 February 2004 he had been able to sign a document which was completed at the time of a tenancy check visit, and in addition to signing that form. He produced, as is noted on that form, identification of himself in the form of a driving licence and a bank statement. Furthermore, on 20 May 2004 he instructed letting agents in relation to the letting of property and specifically instructed them not thereafter to manage the property because he intended to do that himself. After the subletting he attended the flat in order to try to obtain an increase in the rent. On about15 June 2004, he had as already noted made a claim on his household insurance policy. Shortly before 27 June 2004, he signed a transfer in relation to the purchase of the property because that document was included in his solicitors' letter of that date.

Mr Malcolm's mother gave evidence that when she asked the defendant why he had sublet his flat, he said it was because someone on the television told him to do it. The judge did not accept this because Mr Malcolm himself did not give that evidence and there was no evidence as to when Mrs Malcolm had had that conversation with him. Mr Malcolm had said that when he became ill he went to live with his parents, but when he gave his address to the letting agency he gave his girlfriend’s address, and this appeared to have been before he went to live with his parents.

Mr Carrott submits that there was compelling evidence that Mr Malcolm fell within C21 of the code of guidance. The evidence showed that he was neglecting himself and that he had lost his job. Thus he ignored the physical danger to himself. The judge should have looked at the whole period of his illness and should not have concluded that simply because he could carry out some normal day-to-day activities he did not fulfil the statutory requirements. The mere fact that he had received medication was on Mr Carrott's submission sufficient to bring Mr Malcolm within the definition of the disability in the DDA 1995.

Mr Latham also submits that the judge did not adequately assess the evidence of the disability or the meaning to be given to the word “substantial”. He submits that a person diagnosed with schizophrenia would normally have a disability for the purposes of the DDA, unless symptoms were particular mild, or was something particular about the diagnosis. He further submits that it is sufficient if the disability affects a specific activity, and it is not intended that the court should conduct an enquiry into all aspects of a person's ability to carry on normal day-to-day activities

Mr Goudie submits that the judge directly correctly directed herself in her analysis of whether or not Mr Malcolm has a disability. The statutory definition of disability is expressed as long-term and substantial adverse effects. The material period was when Mr Malcolm was not medicated. Mr Goudie submits that the judge does not refer to the fact that to be substantial it was sufficient that the effect is other than the minor or trivial but that this was common ground.

The judge reviewed the evidence with great care, but almost entirely confined her attention to the period when Mr Malcolm was unmedicated, that is the period from late 2003 to July 2004. In her judgment, that period would show the defendant at his worst, that is when most affected by his illness. As I have explained above, in my judgment, evidence from the earlier period is also relevant in so far as it throws light on Mr Malcolm's ability to carry on normal day to day activities at the date of the subletting. The evidence as to his condition before 2003 is sparse, but contrary to Mr Goudie's submission I do not think that that entitles the court to ignore it. That evidence shows that he has schizophrenia of a sufficiently serious type to require medication, and indeed that he has been hospitalised with it on ten occasions, on two of which he was sectioned under the mental health legislation. That evidence also shows that his condition was sufficiently serious to warrant a regular and permanent medication. When it comes to 2003, events also show that he could not be relied on to take oral medication.

It is common ground on this appeal that the judge was concerned to establish whether the effect of Mr Malcolm’s schizophrenia on his ability to carry out normal day-to-day activities was properly described as “substantial” within the meaning of A1 of the code of guidance. I have set out A1 above. In my judgment, it follows from the meaning of "substantial" there given that the court is not concerned to examine Mr Malcolm's ability to carry on or not all normal day to day activities. The effect of his schizophrenia on his ability to carry out normal day to day activities will be other than the minor or non-trivial if it has a significant effect on any important day-to-day activity.

The judge does not set out the test of substantiality that she is applying. Mr Goudie says that it was common ground and therefore that she did not have to set it out. However in the light of the evidence summarised in the next paragraph, I do not consider that this court can probably assume that the judge applied the right test.

In terms of schedule 1, paragraph 4 the judge was concerned with Mr Malcolm's memory or ability to concentrate, learn or understand and his perception of the risk of physical danger. Dr Steadman quotes the International Classification of Mental and Behavioural Disorders, ICD 10 Clinical Descriptions and Diagnostics Guidelines. He states that the classification starts the section on schizophrenia by an explanation that "schizophrenic disorders are characterised in general by fundamental and characteristic distortions of thinking and perception and by inappropriate or blunted affect”. Moreover, Dr Sivathasan, who was treating Mr Malcolm, stated that he saw Mr Malcolm on 1 April 2004 and that he had become "dysfunctional at work, eventually, simply sitting at his desk. He was losing weight, not sleeping or eating. He demonstrated marked psychomotor retardation, associated with impoverished concrete thinking.” In my judgment that is clear evidence that Mr Malcolm was suffering an abnormal inability to carry on normal day-to-day activities and that inability could not be described as minor or trivial.

In my judgment, this court can be confident in substituting that conclusion for the judge’s conclusion. The evidence that Mr Malcolm exhibited confusion in his thinking supports the conclusion expressed in the last paragraph. If a person is confused, that shows he is having difficulty in understanding. Although the judge found that Mr Malcolm’s evidence was unreliable, she judge did not find that Mr Malcolm was a dishonest witness or that he deliberately told untruths. Nicola Evans (housing investigation officer of Lewisham) took the view that he had knowingly sublet his flat and was trying to cover up what he had done. But it does not appear that she knew about his condition. Evidence as to his confusion includes the confusion that he exhibited to the environmental protection officers. There is further evidence of his inability to understand in the evidence of Mr Malcolm's mother. She is clearly an important figure in his life and a person who is also close to him and caring. She says in her evidence that in the relevant period Mr Malcolm lost much weight and that his behaviour began to change dramatically. She says that he was monosyllabic, that he would not talk to her and that he did not look after his appearance. This evidence is enough to meet the statutory test even though there is other and extensive evidence that he could do other activities, in particular filling in complex forms to obtain a mortgage, housing benefit and jobseeker's allowance, drive a car and so on. In addition, there is the evidence of Mr Clifford (a social worker), who while not a person with medical qualifications appears to have had contact with Mr Malcolm in the relevant period, and who states that he became confused, losing weight and not having complete capacity to make appropriate decisions concerning his welfare or the capacity to understand the consequences of his decisions. The judge noted that there was no independent evidence as to why Mr Malcolm’s employment terminated in May 2004. But it is a reasonable inference, particularly in the light of the passage from Dr Sivathasan’s letter that I quoted, that Mr Malcolm lost his employment because of the effect of his schizophrenia on his ability to discharge his duties as an employee.

In the circumstances, I consider that the judge was in error on this issue.

I have come to the conclusion that the judge’s approach was wrong but before I explain why I have come to that conclusion I must set out the judge’s conclusion. I have set out the judge’s findings of fact under issue (ii). The judge’s conclusion was as follows:

This issue (issue (iii)) involves an anterior issue of law that with which the argument in this case only superficially engaged. That anterior issue is the meaning of “relates” in the context of the statutory phrase “ for a reason which relates to the disabled persons disability" (s 24(1) of the DDA 1995). This issue did not arise in Romano. The only other relevant authority so far as counsels’ researches go was the first case in this court under the DDA 1995, namely Clark v Novacold Ltd. In that case, this court had to interpret the phrase "for a reason which relates to the disabled person's disability" appearing in s 5(1) of the DDA 1995. S 5(1) is the same as s 24 save that it applies for the purposes of Part 1 of the DDA 1995, not s 22, and save that it applies to an employer not “a person (A)”, but these are not differences which affect the question with which I am now concerned (on this, see also the comments of this court in Novacold about the scheme of the Act at page 964A to F).

The question in Novacold was whether the applicant was dismissed for a reason which related to his disability. Mummery LJ, with whom Roch and Beldam LJJ agreed, held that the issue whether the applicant was dismissed for a reason which related to his disability was a question of fact. The industrial tribunal had found that the reason for dismissal was related to the disabled person's disability because he had been absent from work following an accident and the ground given for his dismissal was his absence from work. Mummery LJ went on to consider a second issue, namely whether the employer treated the applicant less favourably than it would treat others to whom that reason would not apply. He held, as a matter of interpretation of s 5(1) and in particular the words “that reason” (which similarly appears in s 24(1)), that the disabled person did not have to show that an able-bodied person who had been absent for work for the same period would not have been dismissed.

In his judgment, Mummery LJ gave a number of examples, including the example of a blind person, who was refused entrance to a cafe with his guide dog on the grounds that no dogs are admitted. Mummery LJ held that reason for non-admission “relates to his disability”. "His guide dog is with him because of his disability” (page 965F).

The decision in Novacold was influenced by the fact that in disability discrimination justification is available as a defence to both direct and indirect discrimination where as it was not so available under other discrimination Acts (see page 963H). Furthermore, at page 963F, Mummery LJ held:

It follows from the example of the guide dog that it does not matter that Lewisham would have treated every tenant who sublet in the same way, even if the tenant had no disability. In fact, perhaps because Lewisham did not seek to assert justification, there is no evidence as to Lewisham’s policy on this. Section 5(1) was repealed by the Disability Discrimination Act 1995 (Amendment) Regulations 2003 (SI 2003/1673) but the words quoted above from s 5(1) now appear in section 3(1) of the DDA 1995, as amended by those regulations. I note that Parliament did not seek to reverse the decision in Novacold when these regulations were enacted.

The requirement that a reason "relates to" a person’s disability implies that there must be an appropriate relationship between the subletting and the disability. However, in my judgment, to identify what that relationship involves, it is necessary to embrace the breadth of the decision in Novacold. What followed from the decision in that case is that the disability need neither be the sole cause of any action nor a matter without which the action would not have occurred. Applying the decision in that case to this case, the court starts by looking at the matter from the position of the person who is performing the treatment, in this case, Lewisham, and its initial factual inquiry is: did Lewisham decide to take possession proceedings against Mr Malcolm because he had sublet? The answer to that question is clearly yes. Then, to ascertain whether there exists an appropriate relationship between the reason (subletting) and the disability (schizophrenia) the court must enquire whether the reason (Mr Malcolm’s subletting) for the treatment (taking possession proceedings) engaged some aspect of his disability. If so, the reason was related to the disability.

That inquiry, however, raises a difficult point of legal policy. Is it the intention of Parliament as demonstrated by the words Parliament has used, that a person with a disability should have to show that he was actually motivated by the disability when he took a step which led to the person performing the treatment to perform it? It is obviously not enough that he shows simply that he has a disability for if that had been the policy of Parliament the words "for a reason that which relates to the disabled person’s disability" could have been omitted. On the other hand, what is to be the position of a person with a disability who was more susceptible to the treatment than a person without that disability? Was it the intention of Parliament that that person should have been protected as well as the person who can show that his action was actually due to his disability?

As the judgment of Mummery LJ shows, disability discrimination raises difficult questions as to where the balance is to be drawn between the protection of persons with a disability and the interests of those who deal with them and society in general:

The examination of the disability discrimination legislation in this case has demonstrated a number of things. First, it is the clear intention of Parliament to diminish discrimination against persons with a disability. This desire is consistent with a desire to draw a distinction between the responsibility of a normal person for his own action and the responsibility of a person who was a victim of the circumstance of disability for his own action. We have seen how the threshold test for substantiality of the adverse effect of a person's disability on his ability to carry out normal everyday transactions is pitched at a very low level. We have seen that the distinction between direct and indirect discrimination has been removed. We have seen how this influenced this court in Novacold to give teeth to the disability discrimination legislation by holding that, on a true interpretation of the DDA 1995, the appropriate comparator was not an able-bodied person in the same circumstances and therefore that the applicant did not have to show that an able-bodied person would not have been dismissed in the same circumstances that he was in fact dismissed because of his disability. All these factors argue for an approach to the interpretation of the disability discrimination legislation which provides reasonable but generous protection for a disabled person as against in this case his landlord, in the knowledge that it will be open to the landlord in certain circumstances to rely upon justification.

In the present case, Mr Malcolm was not at the material time on medication. The judge rejects his case on this issue on this basis: (1) Mr Malcolm had while unmedicated filled in a number of documents, for example for jobseeker’s allowance, signed the transfer for the flat, operated his bank account and so on; (2) the decision to sublet was a planned decision linked to the obligations to be undertaken by his mortgage application; (3) it was not a disadvantageous transaction financially and therefore it cannot be said to be an irrational decision which was caused by his illness. Those are the only matters which the judge refers to in this context. But the judge’s reasoning overlooks other material factors. Mr Malcolm was advised by his solicitors, ASB Law, when he made the mortgage application and in relation to the flat purchase and thus on the transfer (appeal bundle pages 204, 267 and 279). By contrast, there is no evidence that he had legal advice when he engaged letting agents. He must have approved the terms of the letting but he did not sign the tenancy agreement. That was signed by his letting agent on his behalf (appeal bundle page 275). The question of the amount of the rent is not the only reason why a letting might be disadvantageous. It might also be disadvantageous because it would mean loss of the right to buy and the secure tenancy. The judge failed to take into account that the decision to sublet was in the circumstances in which Mr Malcolm was placed a decision which was different in quality from decisions such as to claim jobseeker’s allowance. That is important because the evidence from Dr Sivathasan was that his ability to understand the consequences of what he did was impaired (see [76]) above. I must turn to consider the effect of the judge’s overlooking of this important consideration.

Before I do so, I would add that there was no direct evidence about why Mr Malcolm entered into the subletting other than evidence on which the judge decided for sufficient reason that she could not place reliance. That evidence was Mr Malcolm’s evidence that the decision to sublet was an illogical decision made when he was unwell, and his mother’s evidence that (as the judge found, at some unspecified time) he had told her that he had let out his flat because “someone on the television had told him to”.

In those circumstances, I now have to consider and identify the appropriate relationship required by s 24(1)(a) between Mr Malcolm’s disability and the subletting. Where the disability is of the kind with which we are concerned, it renders the person with the disability liable to be abnormally affected when he enters into a transaction. It is one of the characteristics of the disability that the understanding of a schizophrenic (who is not satisfactorily medicated) of the consequences of his subletting would be significantly affected. The subletting had complex consequences in law which could surprise a person without that disability, particularly given the exercise of the right to buy. There is no evidence that Mr Malcolm approved the subletting in a perfectly lucid phase when he was fully able to understand the consequences of the transaction of subletting. In my judgment, the evidence as to the nature of Mr Malcolm’s condition, which involved a susceptibility to distortions of thinking and to concrete, and therefore limited thinking, is sufficient on the facts of this case to establish the relevant relationship, and there is no need to find a causal link between the treatment and the disability in the sense of showing that a schizophrenic episode actually caused the subletting. That would, applying Novacold, be to seek to find the cause of the subletting rather to ascertain whether there was an appropriate link, or relationship, between the disability and the reason (the subletting) for the treatment (taking possession proceedings). In my judgment, there was an appropriate link on the facts of this case.

I reach my decision by examining the nature of the transaction and the nature of the disability in the context of that transaction. On that basis the judge applied the wrong approach and overlooked material considerations. I would add this. In this case, Mr Malcolm was evidently a person requiring medication who did not have it at the relevant time. So, while his condition was in the relevant period variable, he was liable to schizophrenic episodes. When he was fully back on medication, he did not suffer from these difficulties. If the subletting had occurred at that time, I doubt whether it could have been shown that there was the necessary relationship between the subletting and the disability, but I would not wish to be taken to express a final view because this point has not been argued. As it was, Mr Malcolm was suffering from symptoms which made him susceptible to significant difficulties of understanding and that would be enough to establish the necessary relationship. The statutory requirement for a relationship between the disability and the subletting does not therefore require the court in this kind of case to go into the question whether at the actual moment of subletting he was or was not suffering an actual schizophrenic episode, but simply whether his then current general state of health as a result of the condition from which he suffered rendered him liable at that point in time to suffer relevant difficulties of understanding.

As I have indicated, there was no evidence at the trial about what happened when Mr Malcolm went into the subletting. He must have had communications with the agents and with the prospective tenants. The judge was clearly influenced by the fact that Mr Malcolm had been able to complete other documentation without any suggestion that he had found it difficult to understand. On the other hand, Millicent Perkins, Mr Malcolm sister, gave evidence that in July 2004, her daughter was married. Mr Malcolm was excluded from the celebrations because his behaviour was unpredictable. It is hard to think that in an evidently close-knit family this would have been done unless Mr Malcolm had been subject to fairly persistent and manifest episodes of his schizophrenic disorder and that he was often not acting as a normal person. My conclusion is that the intention of Parliament in the DDA 1995 was to provide some protection for a person in this position even if he did not suffer from his disability all the time.

I should summarise very briefly the parties’ submissions on this issue. While Mr Carrott submits that there ought to be some adaptation of the usual requirements of causation that is not the thrust of his case. Mr Carrott submits that the judge's conclusion on this issue was tainted by her conclusion on issue (ii) and that the judge ought on to have held that on the balance of probabilities, it could be said that Mr Malcolm’s substantial health problems had caused the subletting. Mr Latham makes no submissions on issue (iii) at all. Mr Goudie submits that Mr Malcolm is unable to show that the breach of his tenancy agreement was caused by his disability. On his submission, the judge was right in holding that that she did not necessarily have to consider Mr Malcolm’s understanding of the consequences of his breach and that on the evidence this was a planned breach. It was not argued on this appeal that the subletting was on disadvantageous terms (cf the passage cited above from the judge’s judgment).

As I have explained above, in my judgment, the judge in seeking to determine whether the disability caused the subletting asked the wrong question and overlooked material considerations. As explained above, the question that she ought to have asked was whether the subletting was related to the disability. This is clearly a lower test than having to establish that the disability was the actual cause of the subletting. It follows that I do not accept the thrust of Mr Carrott's argument that the finding on disability should be set aside on the grounds that it was tainted by the judge’s approach to disability.

The judge actually made no finding as to when Lewisham acquired knowledge of Mr Malcolm’s disability and this issue proceeds on the basis that it did not have that knowledge at the time it was served with Mr Malcolm’s defence. The judge did not come to a final decision on the question of the relevance of knowledge to discrimination. She held:

As the judge makes clear, this court in Romano concluded (obiter) that lack of knowledge of a person’s disability did not confer on a provider of services a defence to discrimination. Mr Carrott submits that this should be the conclusion in relation to premises, but Mr Goudie submits (correctly) that Lewisham is not for this purpose a “provider of services” (being a person who is concerned in the provision of services to a section of the public: see ss 68(1) and 19(2)(b) of the DDA 1995). His case is that Lewisham can rely on its lack of knowledge of Mr Malcolm’s disability.

At least two types of knowledge are relevant, firstly, knowledge of the facts which constitute the disability and, secondly, knowledge that those facts amount to a disability for the purposes of the DDA 1995. In Romano, this court apparently considered that treatment contrary to the DDA 1995 could occur even though the provider of service had neither type of knowledge. If either type of knowledge were relevant for this purpose, there would be the further question whether the provider of the service ought to have known that the facts or as the case may be that they amounted to a disability for the purpose of the DDA 1995.

S 24 contains no express requirement that in order to treat a person in the manner there described a landlord must have knowledge of a tenant’s disability at the time it gave notice to quit or starts possession proceedings. Mr Goudie’s submission is that a requirement for the possession of knowledge is a necessary implication from the words “for a reason which relates to a person’s disability” in S 24. That involves an examination of the words “reason" and the word "relates". As to the word "reason", Mummery LJ held that the words "that reason" in s 5(1) referred to the facts constituting the reason for the treatment, and did not include the added requirement of a causal link with disability (page 963F) (see [99] above). He does not refer to any requirement for knowledge as part of "the reason". Later in his judgment, he gives the example of the blind person denied access to a cafe with his guide dog. I have already referred to this example in [98] above. That example does not depend on the cafe owner knowing that the person seeking entrance was blind. The blind person may simply have gone to the café and been turned away by the notice at the entrance stating that no dogs were admitted. Accordingly, I do not consider that the word "reason" necessarily imports knowledge on the part of the landlord. That leaves the word "relates". As to this, in my judgment, the question whether a reason “relates” to a person’s disability is one of objective fact and does not therefore depend on knowledge of the fact of disability for the purposes of the DDA 1995. Accordingly I conclude that treatment of the kind described in s 24(1)(a) can occur even though the landlord has no knowledge of the disabled person’s disability or of the facts which makes him disabled.

The same conclusion was reached in H. J. Heinz v Kendrick[2000] ICR 491 at [25], where Lindsay J, giving the judgment of the EAT, likewise held that s 5(1) of the DDA 1995 did not require knowledge of the employee’s disability. He gave as an example of discrimination contrary to the DDA 1995 the case of an amputee who manages to hide his disability from his employer but is dismissed because he is slow in delivering messages. Lindsay J considered that there would in this case be less favourable treatment for a disability-related reason even if the employer did not know of the disability. He also gave the example of a secretary dismissed because, despite repeated training, he persisted in typing hopelessly misspelt letters without the employer knowing that the reason for the errors was not ignorance or carelessness but dyslexia. It is correct, as Mr Goudie pointed out, that other decisions of the Employment Appeal Tribunal have decided that some form of knowledge is necessary, see for example O’Neill v Symm[1998] ICR 481, but the Employment Appeal Tribunal has itself held that that decision should not be followed: Hammersmith and Fulham LBC v Farnsworth[2000] IRLR 691. On the basis that less favourable treatment can occur even though the employer does not know of the disability, it can be inferred that the legislative policy is that the employer should make some investigations as to the reasons for the employee's conduct. Likewise, here, it was open to Lewisham to ask Mr Malcolm why he had sublet his flat. Indeed, Lewisham had an interview with Mr Malcolm after it discovered the subletting. This was apparently at his request though Lewisham could have asked for it. If Lewisham had spoken to Patrick Clifford, the social worker, it might have found out about Mr Malcolm's unmedicated schizophrenia.

In the field of employment employers have a duty to make reasonable adjustments for the benefit of employees, or in some cases candidates for employment, where they had a disability: s 4A of the DDA 1995. S 4A(3) excludes this duty if the employer did not know and could not reasonably be expected to know that the candidate was a candidate or in any other case that the person had a disability and was likely to be adversely affected by (for example) some physical feature of the employer’s premises. It is interesting to note that there is a specific reference to lack of knowledge in these circumstances. This is some assurance that Parliament was aware of the importance of knowledge from the point of view of the person alleged to discriminate and shows that it made specific reference to the need for knowledge where it intended the lack of knowledge to exclude liability for discrimination. There is a duty to make adjustments to premises imposed by s 21 of the DDA 1995, but this is not limited, for example, to persons who have or seek to have a contractual relationship with the landlord but extends to “disabled persons” more generally. This group would include, for example, visitors to the premises. It is noteworthy that the s 21 duty is not excluded on the grounds of the landlord’s lack of knowledge.

Furthermore, my conclusion is consistent with James v Eastleigh BC[1990] 2 AC 751, where the House of Lords held that discrimination contrary to the Sex Discrimination Act 1975 did not require an intention to discriminate on the grounds of sex and was not excused by a motive of conferring a benefit. (The concept of less favourable treatment is a common point of reference in disability, sex and race legislation.) The conclusion which I have reached on knowledge is consistent with the role of intention. If intention to discriminate had been necessary, knowledge of the relevant facts or that those facts constituted discrimination would also have been necessary. The fact that intention is not necessary renders it less likely that Parliament intended knowledge to be necessary.

The landlord’s lack of knowledge may be relevant if the court has to consider justification but that point has not been argued in this case and I accordingly express no final view thereon.

For the reasons given above, I would allow this appeal and dismiss the possession proceedings. On two of the grounds, permission to appeal was given in the High Court before the case was referred to this court and in so far as necessary I would grant permission to appeal on those grounds in this court also. I would make a declaration that the claim by Lewisham in these proceedings for a possession order constituted unlawful discrimination contrary to Part III of the DDA 1995. I also consider that this court should declare that the notice to quit also constituted unlawful discrimination contrary to Part III of the DDA 1995.

Neither Mr Latham nor Mr Carrott has sought to argue that that would mean that Mr Malcolm’s secure tenancy is revived (see s 93 of the HA 1985). It follows that Mr Malcolm has lost the right to buy the flat. However, the further declaration about the notice to quit would at least mean that his contractual tenancy never terminated.

Although the matter has not been fully argued, it would appear that, if the notice to quit were not declared invalid, Mr Malcolm may, in the absence of a new agreement, be a tolerated trespasser with all the attendant difficulties that concept brings: see generally the recent case of London & Quadrant HT v Ansell[2007] EWCA Civ 326 and, for example Loveland, Tolerated Trespasser: a VeryPeculiar Legal Creature [2007] 123 LQR 455,Bright, The Concept of a Tolerated Trespasser: an Analysis [2003] 119 LQR 495.

Lord Justice Longmore:

Section 1(1) of the Disability Discrimination Act 1995 defines disability as:-

In 1985 Mr Malcolm was diagnosed as suffering from schizophrenia. Between 1985 and 1990 he was admitted to hospital on or about 10 occasions, two of them being compulsory admissions pursuant to the Mental Health Act. From 1990 onwards his condition stabilised under depot medication and he had a job with the claimant Local Authority. He has two adult children and one child of a marriage of 1993 which has now broken down and been dissolved.

Dr Sivathasan, a staff psychiatrist employed by the South London and Maudsley NHS Trust saw Mr Malcolm in October 2003 and April 2004 and stated in February 2005:-

What the judge did was to look at the period while Mr Malcolm was unmedicated between October 2003 and July 2004 and determine whether during that time he was “disabled” within the meaning of the 1995 Act. She recited evidence given by Mr Malcolm’s family to the effect that he both could and could not carry out normal day to day activities (para. 39); she discounted Dr Sivathasan’s evidence that Mr Malcolm was dysfunctional at work on the basis that the evidence came from the defendant and then relied on evidence set out later in the judgment (para. 49) to conclude (para. 42) that the mental impairment from which Mr Malcolm suffered did not have a “substantial adverse effect” on his ability to carry out normal day to day activities. That evidence was to the effect that Mr Malcolm could and did

It is a pity that the judge was not referred to the details of Goodwin v Patent Office[1999] ICR 302 in which the Employment Appeal Tribunal gave considered guidance to employment tribunals about the proper approach to deciding whether an applicant was disabled for the purposes of the 1995 Act. As it happened, the applicant in that case was a diagnosed paranoid schizophrenic who was not on proper medication at the time when he was employed but could care for himself at home, do his own shopping and cooking. The employment tribunal concluded that his mental impairment affected his ability to carry out his day to day activities but not substantially so (305 A and E). But this conclusion was reversed by the Employment Appeal Tribunal who said (page 307) that it was important for tribunals to have regard to the statutory “Guidance” on matters to be taken into account in determining questions relating to the definition of disability and to the Disability Discrimination Code of Practice. They also said (308G) that if there is doubt whether the condition of impairment is fulfilled in a mental illness case, it will be advisable to see whether the illness is mentioned in the World Health Organisation’s International classification of Disease and, if it is, that will very likely determine the issue. Schizophrenia is, of course, so mentioned in ICD10 as stated in paragraph 2 of Dr Steadman’s report.

Under the heading of “The adverse effect condition”, the EAT emphasised the Act’s concern with the impairment on a person’s ability to carry out activities, saying (308G):-

Under the heading of “The substantial condition” the EAT then pointed out (310G) that the word “substantial” could mean “very large” or “more than minor or trivial” but said that paragraph A1 of the Guidance showed that the word was used in the latter sense.

For my part I would adopt and approve the decision of the EAT in Goodwin v Patent Office. It seems to me that once that is done the judge’s (fairly knife-edge – see para. 42) decision cannot stand. She never concentrated on the question of what Mr Malcolm could not do and the degree of impairment of his ability to do what he could do, since she relied heavily on those things which he could do. Nor did she address the question whether the impairment was more than trivial which on the medical evidence it clearly was. Nor did she explain why the fact that Mr Malcolm was suffering from a mental disease recognised by the WHO International Classification did not determine the issue or, if it was determinative when he was first diagnosed, how it had ceased to be determinative.

For these reasons this court has no option but to set aside the finding of the judge on the issue. It is, of course, true that the question of disability or no is largely a question of fact but it is not a question of primary fact. It is a question of the proper conclusion to be drawn from a series of primary facts, few of which are in any way contentious. Moreover, with respect to the judge, I do not think it can be right to dismiss or belittle Dr Sivathasan’s conclusions about dysfunctionality or “marked psychomotor retardation” on the basis that the information came from the defendant. The doctor’s conclusion is a professional judgment made on 1st April 2004 well before the potential significance of any sub-letting by Mr Malcolm had emerged. I therefore agree with my Lady that this court should make its own finding on the evidence and conclude that Mr Malcolm’s mental impairment did have a substantial effect on his ability to carry out normal day to day activities.

Once it is determined that Mr Malcolm was disabled for the purposes of the 1995 Act, it is then necessary to take the steps succinctly set out by Richards LJ in Richmond Court (Swansea) Ltd v Williams[2006] EWCA Civ 1719 (para. 41):-

Mr Goudie QC submitted that, by reason of section 93 of the Housing Act 1985, Mr Malcolm forfeited his status as statutory tenant once he sublet the premises. That occurred before any discriminatory treatment by the Council began. He then said that, although it might be discriminatory to serve a notice to quit, issue proceedings for possession and continue them to the door of the court, the judge had no option but to grant the possession order; once the notice to quit had expired, Mr Malcolm was a trespasser and there was no requirement that the court had to consider it reasonable to make a possession order. He referred to McPhail v Persons, Names Unknown [1973] Ch 447 and cited Wandsworth London Borough Council v Michalak[2002] EWCA Civ 271, [2002] 4 All ER 1136 where a statutory tenancy had come to an end because the alleged successor did not meet the statutory qualifications. Brooke LJ there said (para. 43) that Mr Michalak had no legal right to remain in the flat after the expiry of the notice to quit:-

At some points in the argument it was suggested that the two statutory schemes of the Housing Acts and Disability Discrimination Act were in conflict but that is not how I see it. The council is not permitted to turn Mr Malcolm out without a court order by reason of the provisions of the Protection from Eviction Act 1977. One of the purposes of the involvement of the court is to ensure that orders for possession are lawfully made. If the obtaining of the order would discriminate against a disabled person it will not, in my judgment, be lawful to make the order because section 22(3) of the Disability Discrimination Act 1995 provides that such discriminatory treatment is unlawful. On this aspect of the case, I agree with what my Lady says in paragraphs 61-65 of her judgment.

It is said that the 1995 Act provides for damages but does not provide for defences to be available against the seeking of possession orders. But the fact that no express provision is made for defence does not absolve the court in possession proceedings from deciding whether it is lawful to make the order. We were not addressed about the amount of any damages a disabled tenant would be able to recover if he were required to give up possession. But if (as would perhaps not be impossible) the damages would be the cost of renting a flat on the private market for the rest of Mr Malcolm’s natural life, it is by no means clear that it would serve any useful purpose to confine the disabled person’s remedy to a claim for such damages.

Finally Mr Goudie submitted that the Council never knew about Mr Malcolm’s disability at any relevant time and that, for this reason also, Mr Malcolm was not entitled to any remedy. On any view of the matter, however, the Council became aware that Mr Malcolm was asserting he was under a disability at the time they received his defence to their proceedings and at the time the case was argued in front of the judge. That means, in my view, that Mr Malcolm should have his remedy.

But section 24 of the Act does not require that the alleged discriminator be aware of the claimant’s disability and I do not think Parliament can have intended that such lack of awareness should be a defence to a discrimination claim. That also appears to have been the view of this court in Manchester City Council v Romano[2004] EWCA Civ 834, [2005] 1 WLR 2775 para. 121.

It follows from this that, in my view, even the service of the notice to quit constituted unlawful discrimination and I would so declare. On that basis the contractual tenancy would continue and that at least avoids the inconvenience, which would otherwise arise, that Mr Malcolm would have to be treated as a tolerated trespasser. In the event, therefore, I agree with my Lady’s proposed disposition of this appeal.

Lord Justice Toulson:

I agree with Arden LJ that the answer to this question is yes for the reasons which she has given.

The purpose of the Act is to curb the freedom of other members of society to treat persons with disabilities in ways in which they might otherwise have a right to do, where such treatment would involve discrimination prohibited within the terms of the Act.

But for the Act, a private landlord letting premises through an estate agent would be within his rights if he were to direct the estate agent not to let the premises to anyone suffering from a long-term mental illness. Section 22 prohibits such behaviour.

As Arden LJ has pointed out in [51], if the Act provides protection at the pre-contractual stage, it would be strange for it not to provide protection against discriminatory treatment leading to the dispossession of a tenant. If, for example, a commercial landlord were to acquire a portfolio of properties subject to assured shorthold tenancies and gave instructions to his managing agent to serve notices to quit on all tenants with long term disabilities, such conduct would fall squarely within s 22(3)(c). In those circumstances I cannot see that the landlord would be entitled to rely on the provisions of the Housing Act 1988, which give to a landlord a right to possession of premises let on an assured shorthold tenancy by service of a notice to quit, because in seeking to evict the tenants with disabilities the landlord would be acting unlawfully under the DDA. The court would not give its assistance to a party seeking to act unlawfully in that way. The boundaries of the doctrine of illegality may be difficult in some circumstances, but one thing which a court will not do is to make an order that has the effect of directly contravening a statute. An order for possession in circumstances where the eviction of the tenant is prohibited by s 22(3)(c) of the DDA would be such an order. For I see no good reason to construe s 22(3)(c) so as to exclude cases in which, discrimination apart, there would be a right to evict the tenant, since that would undermine the purpose of the protection.

This involves more difficult questions. Like Longmore LJ, I find the list of questions formulated by Richards LJ in Richmond Court (Swansea) Limited v Williams [2006]EWCA Civ 179 (set out in [133] above) a helpful way of approaching the issues.

Put simply and broadly, the treatment complained about is Mr Malcolm’s eviction (or proposed eviction) from the premises. The eviction process involves a number of steps (the service of the notice to quit, the issue of a claim form, the obtaining of an order for possession and, if necessary, the enforcement of a warrant for possession) but the argument concentrated sensibly on the obtaining of an order for possession against which the appeal is brought.

The reason was that the Mr Malcolm unlawfully sublet the premises. It was this fact alone which made Lewisham decide to give him notice to quit and bring proceedings for possession.

As I see it, there must have been some causal link between Mr Malcolm’s disability and his unlawful subletting to bring him within the potential scope of ss 22 and 24. Approaching the matter from the opposite direction, if Mr Malcolm happens to suffer from a disability but it had nothing to do with his decision to sublet the premises, the mere fact that he suffered from a disability would be irrelevant. On the other hand, the disability need not have been the sole cause. In Clark v Novacold Limited [1999] ICR 951, 963 F, Mummery LJ referred to the “requirement of a causal link with disability”. I doubt that it is possible to find a form of words which defines more precisely the degree of causal connection required. Determining whether there was a causal link is fact specific exercise.

I will come later to the separate question about the requisite knowledge of the alleged discriminator.

As Arden LJ has recited, the judge found that Mr Malcolm was not at the relevant time suffering from a disability within the meaning of the DDA and that in any event his decision to sublet the premises was not caused by his schizophrenia.

On the question whether Mr Malcolm was suffering from a disability within the meaning of the Act, I agree with all that has been said by Arden and Longmore LJJ.

I have found the question whether there was a causal link between his disability and the subletting more difficult. I agree that the judge’s adverse finding on that issue is flawed by her approach to the anterior question whether he suffered from a disability and cannot stand, but I have had doubt whether the material before this court enables us to make a positive finding that there was the requisite link between his disability and his subletting. However, I would be reluctant to order a retrial if it is avoidable, and I would not press my doubts to the point of disagreement with the other members of the court about whether there was the requisite link.

This issue was touched on briefly in the course of argument.

Section 24(1) provides that for the purposes of s22 a person discriminates against a disabled person if:

The same formula appears in other parts of the Act including s 5 (in relation to employment). Lewisham would have liked to argue that the italicised words mean others to whom the reason for the treatment had no relationship with disability. In other words, the relevant comparator would be a non-disabled person who had unlawfully sublet premises of which he was until then a secure tenant. However, that argument is not open to Lewisham before this court because an identical argument was rejected in Clark v Novacold Limited. The point arose in relation to s5 in an employment case, but the construction issue is the same.

It was there held (at 963 F) that the words “that reason” in the italicised passage refer only to the facts constituting the reason for the treatment, and do not include the added requirement of a causal link with disability. So the relevant comparators are those to whom the reason (in this case unlawful subletting) did not apply.

A person will obviously not make a complaint under the Act unless the relevant treatment is adverse to his interests. Where that is so, and the reason is related to disability, it would seem to follow from Clark v Novacold Limited that the complainant is logically bound to be able to satisfy the requirement of showing that his treatment is less favourable than would be accorded to others to whom the reason for his treatment did not apply. For without the reason there would not be the treatment.

It is possible to envisage cases where the reason for the complainant’s treatment is of entirely general application. Richmond Court (Swansea) Limited v Williams was an example. In that case the owners of a block of flats refused a request by an elderly immobile tenant for permission to install a stair lift. The grounds of refusal had to do with aesthetics, the costs of repairs, noise and inconvenience to the residents as a whole. As Richards LJ observed at [45], where the reasons for the treatment are of entirely general application, an attempt to identify a group of comparators to whom the reasons do not or would not apply is an impossible exercise. But in such a case the complainant will not have established that the reasons were related to the complainant’s disability, and therefore the question of comparison with others would not arise.

Strange as this may seem, it appears to be the position on the present authorities that the comparative test is either incapable of arising or, where it does arise, is bound to be fulfilled.

It is not suggested by Lewisham that a defence of justification could arise under s 24(1)(b), because the factors which can give rise to a defence of justification are defined in s 24(3) and none of them is relevant in this case.

It is a problem of legislation, not confined to criminal statutes, that Parliament quite often makes conduct unlawful without spelling out the mental element. It is then for the courts to determine the mental element under the guise of inferring what Parliament must have intended.

Sections 22 and 24 fall within Part III of the DDA. Section 25 provides that a claim by any person that another person has discriminated against him in a way which is unlawful under that part may be made the subject of civil proceedings in the same way as any other claim in tort. The complainant is therefore entitled to claim damages (which by s 25(2) may include compensation for injury to feelings, whether or not they include compensation under any other head).

I do not believe that Parliament would have intended to make a person liable in tort for disability discrimination if that person had no awareness or grounds for awareness at the relevant time that the complainant was suffering from disability or that his disability might have any connection with the matters giving rise to the treatment said to constitute unlawful discrimination.

Arden LJ has referred in [112-113] to Romano [2004] EWCA Civ 834, where this court in a reserved judgment given by Brooke LJ concluded that lack of knowledge of the complainant’s disability was not a defence to a provider of services under s 19. The court appears to have been influenced by some things said in the Code of Guidance referred to by Arden LJ in [27]: see [53] and [118] of the judgment in Romano. Section 3 of the DDA requires a court in determining whether an impairment has a substantial and long-term adverse effect on a person’s ability to carry out normal day to day activities, to take into account any guidance which appears to the court to be relevant. But I do not consider that the Code is relevant in determining the degree of knowledge, if any, required for conduct to be unlawful under the Act.

Mr Goudie QC, distinguished the observations in Romano on the ground that they related to service providers under s 19 rather than discrimination in relation to housing, but I do not find that a persuasive ground of distinction, not least because both subjects fall within the same part of the Act.

However, it does not seem to me that the remarks of the court in Romano on the subject of knowledge were necessary for the court’s decision in that case. I am also impressed by the fact that the court itself was uneasy about the consequences. The judgment concluded with these paragraphs:

The success rate of cries by courts or other bodies for a fresh review of legislation is not great, and I would only accept the analysis which troubled the court in Romano if compelled to do so. I do not believe that it is necessary.

I can see that in the area of disability discrimination there may be some difficult questions about what constitutes the requisite degree of knowledge, and here the relationship between the parties may be relevant. The example given in Romano of a publican who refuses to serve drink to a customer appearing to be drunk is one where the publican would have no reason to suppose that the customer was under a disability. If, however, a longstanding employee of sober habits was summarily dismissed for beginning to exhibit similar behaviour, it may be that a responsible employer could be on notice that there might be an explanation other than intoxication. Lindsay J discussed some of the difficulties in this area in HJ Heinz Co Limited v Kenrick[2000] ICR 491 at [44 to 48]. I do not think that this is an appropriate case in which to try to go into details of the precise degree of knowledge or grounds for knowledge required before a person can be liable for disability discrimination.

I would not hold that the service of the notice to quit constituted unlawful discrimination, because there is no evidence that at that stage Lewisham had reason to suppose that Mr Malcolm’s unlawful subletting had anything to do with disability.

However, Lewisham did have notice that this might be so by the time the action came to trial, because the issue was raised in Mr Malcolm’s defence. On the basis that the necessary link between Mr Malcolm’s disability and his unlawful subletting should have been found by the judge to be established, I would hold that it would be unlawful for Lewisham to evict Mr Malcolm. Therefore the claim for possession ought to have been dismissed.

I recognise that it could be argued that the determination of the tenancy brought about a new state of affairs; and that the cause of the service of notice to quit (the subletting) was different from the cause of the possession proceedings (Mr Malcolm’s loss of any right to occupy the premises). At that stage it might be argued that the subletting was no more than background history. I prefer the view that the notice to quit and issue of proceedings for possession were part of a continuous eviction process. I do so because I think that the other view is over subtle and that the view I prefer would better serve the protective purposes of the Act.

It is true that the consequence is untidy in terms of the analysis of Mr Malcolm’s status as occupier of the premises. He is no longer a tenant. However, the complexities of our housing law have given rise to a good deal of untidiness, for example, the tolerated trespasser referred to by Arden and Longmore LJJ. It was recognised by the government that a comprehensive review of the law of rented housing was overdue when it invited the Law Commission to carry out such a review. This was the largest piece of work ever done by the Law Commission to date. Its report on Renting Homes (2006) Law Com 297 and draft Bill await the government’s attention.

Except in relation to the notice to quit, I agree with Arden LJ’s proposals for the disposition of this appeal. While Mr Malcolm continues to occupy the premises holding over from his former tenancy, he remains liable to pay a proper sum for his continued occupation.