| Lewisham LBC v Malcolm and EHRC | |
| Court: | House of Lords |
| Citations: | [2008] UKHL 43, [2008] IRLR 700 |
| Judges: | Lord Bingham of Cornhill Lord Scott of Foscote Baroness Hale of Richmond Lord Brown of Eaton-under-Heywood Lord Neuberger of Abbotsbury |
Lewisham London Borough Council v Malcolm[1] was a case concerning disability discrimination and the application of equality legislation in the United Kingdom, relevant for UK labour law. It replaced the head of disability-related discrimination from the DDA 1995 with the Equality Act 2010 section 15 on discrimination arising from disability.
Courtney Malcolm, a secure council tenant in Lewisham, had schizophrenia. He sublet his house, forfeiting his right to buy under the Housing Act 1985 section 93. At the time, Malcolm had not been taking his medication. The council, unaware of Malcolm's schizophrenia, terminated his tenancy and gave him a notice to quit. A possession order was granted on the basis that a causal connection between schizophrenia and subletting had not been established.
The Court of Appeal quashed the possession, saying it was contrary to DDA 1995 s 22(3) and that it was sufficiently in response to a disability-related reason as to satisfy s 24(1)(a). Questions raised included whether the disability had to have been on the council's mind for the discrimination to be disability-related, and whether the comparator as someone who did not suffer from schizophrenia was one who had sublet or one who had not.
The House of Lords held that Malcolm had to show that the council's awareness of the disability had played some part in its decision to terminate the tenancy, and that he had not done so. Because of this, the Lords considered Clark v Novacold as wrongly decided; the correct comparator was someone who had sublet.[2]
Baroness Hale, dissenting in part, said that Parliament could have made it entirely plain through wording that the comparison to be made under DDA 1995 section 24(1)(a) was with a person who did not have the disability in question, but that Parliament had deliberately not done so and chosen a different formulation. Accordingly, the comparison in the present case ought to be made with a person who had not sublet.
Lord Bingham's judgment was as follows.