The Malcolm case

London Borough of Lewisham v Malcolm - the judgement and its impact

Facts of the case

Courtney Malcolm was diagnosed with schizophrenia in 1985 and had several admissions to hospital before his condition stabilised on medication.  In January 2002, Mr Malcolm took on a secured tenancy with the London Borough of Lewisham. One of the terms of the tenancy agreement was that he must not sublet his flat without the council's prior permission.  

In March 2002, Mr Malcolm exercised his right to buy the flat from Lewisham but the purchase was delayed.

From around the end of 2003, Mr Malcolm stopped taking his medication and his family reported that his behaviour changed.  In May 2004, he lost his job and on 22 June 2004 he sublet his flat without the council's consent.   

On 6 July 2004, Lewisham discovered that Mr Malcolm had sublet his flat and on 9 August 2004 they gave him notice to quit.  On 2 December 2004, the council brought proceedings for possession against Mr Malcolm in the County Court.  This all occurred before his intended purchase of the flat was completed.

Mr Malcolm argued that because he had sublet the flat for a reason related to his disability it was for Lewisham to show that its decision to evict him was justified under the Disability Discrimination Act (DDA).  The only justification defences available to Lewisham under the premises part of the DDA were health and safety s24(2)(a) and incapacity to contract s24(2)(b). 

The County Court ruled against Mr Malcolm on three main grounds:

  • his decision to sublet was not caused by his schizophrenia
  • the DDA did not provide a legal defence to a non-discretionary ground for possession
  • he was not a disabled person within the meaning of s1 of the DDA

The judge also expressed the view that there could be no discrimination unless the council knew of Mr Malcolm's disability.

Mr Malcolm appealed to the Court of Appeal who overturned the County Court decision on all three grounds above and ruled that the possession proceedings were unlawful.

Lewisham appealed to the House of Lords.  The House of Lords heard the case on 29 April 2008 and published the reasons for their decision to uphold Lewisham's appeal on 25 June 2008.  You can read a copy of the judgment here.

What the House of Lords decided

In the judgment the House of Lords ruled that:

  • in DDA premises claims, a disabled person must compare their treatment with someone who is in the same or very similar circumstances to show that they have been treated less favourably for reasons relating to disability. For example, in Mr Malcolm's case, he would have to show that a non-disabled tenant or a tenant with a different disability who had sublet without permission was treated better and had not been, or would not be, evicted
  • a premises provider must know about the disabled person's impairment - and possibly the effects of it - to discriminate for reasons relating to disability.

Effect of the Malcolm judgment

The House of Lords decision in this case has made it more difficult for a disabled person to prove disability-related discrimination.  The judgment means that for some types of disability discrimination cases the correct comparator for a disability-related discrimination claim is now the same as for a direct discrimination claim.   

Disability-related discrimination before Malcolm

Prior to Malcolm, the correct comparator for disability-related discrimination claims (as interpreted by the Court of Appeal in the case of Clark v TDG Ltd t/a Novacold) was someone to whom the disability-related reason for the treatment did not or would not apply.  Once this was established, which was relatively easy to do, the case was decided on whether the treatment was justified.  So, for example, in Mr Malcolm's case he would only have to show that tenants who had not sublet had been treated more favourably to establish a prima facie case of disability-related discrimination.  The case would then be decided on whether the council had a valid justification defence.  

Disability-related discrimination after Malcolm

The effect of the Malcolm judgment is that, in premises cases, the comparison for disability-related discrimination is now more narrowly defined. This narrower comparison and the requirement that a premises provider has to know of the disability - and possibly the effects of it - to discriminate for a reason related to disability means that the scope of the protection under this concept has been reduced and is the same as under direct discrimination.

Does Malcolm apply outside of the premises part of the DDA? (Update April 2009)

Although there are good legal arguments that the Malcolm ruling should only apply in the premises part of the DDA, the appeal courts have recently upheld the Malcolm comparator test in both DDA employment and schools education cases.

In Child Support Agency v Truman and Stockton on Tees Borough Council v Aylott, the Employment Appeal Tribunal over-turned employment tribunal decisions which applied the pre-Malcolm comparator test. In both cases, the EAT followed the House of Lords' decision in Malcolm and ruled that the correct comparator for disability related discrimination claims in employment is the same as for direct discrimination.

And in the case of R (on the application of N) v Independent Appeal Panel of Barking and Dagenham London Borough Council, the Court of Appeal ruled that the narrower Malcolm comparator test also applies to claims for disability related discrimination in the schools education context.

What these cases mean is that the lower courts will almost certainly apply the Malcolm comparator test in all parts of the DDA and not just to the premises provisions. 

What does Malcolm mean for my DDA claim?

In many cases, the difficulties caused by the House of Lords judgment in Malcolm can be overcome by using the duty to make reasonable adjustments, which has recently been introduced into the premises provisions of the DDA for the first time.  

For example, if his case was going to court now Mr Malcolm would argue that the council discriminated against him by failing to make a reasonable adjustment to the terms of, or the way it implemented, its policy on subletting.  It might not be considered reasonable for the council to evict a tenant who sub-let because of mental health difficulties except as a last resort and only after other appropriate measures had been taken. 

Repairing the damage caused by Malcolm

The Commission's view is that by making it harder for disabled people to make a successful claim for disability related discrimination, the Malcolm ruling means that the DDA no longer meets its original purpose.  The Commission will continue to look at ways to reverse Malcolm via the appeal courts.  But the most likely and effective way to address the gap left by the judgment is through primary legislation, namely the Equality Bill.

The Commission has formulated its own proposals in consultation with experts to deal with the gap left by Malcolm via the Single Equality Bill and has shared these with the Office for Disability Issues and the Government Equalities Office.

Commission responds to 'Improving protection from disability discrimination' (Update January 2009)

Earlier this year, the Government undertook a short consultation on its proposals for the Equality Bill in light of the Malcolm decision. Read more information about the Bill on the Government Equalities Office website.

You can download the Commission's response to the consultation setting out our proposals to repair the damage caused by Malcolm here.

Commission proposes way forward in Equality Bill to address the gap left by the Malcolm judgement (Update March 2009)

The Commission has made proposals to the Government Equalities Office to address the gap left by the Malcolm judgement via the Equality Bill.  Download our proposal document:

An effective approach to Disability Discrimination in the Equality Bill (Word 132kb) 

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