In LB Lewisham v Malcolm [2007] EWCA Civ 763 the Court of Appeal ruled that it would be unlawful to evict a tenant if the service of a notice to quit or the making of a possession order would amount to discrimination under the Disability Discrimination Act 1995 ÔDDAÕ).

The landmark ruling has been heralded as a victory for the rights of disabled tenants and occupiers of rented accommodation. The Court had never previously considered a case where the landlord seeks possession on grounds where the court has no discretion to refuse the order for possession and the judgment goes further than any other previous decision on the subject.

Mr Malcolm, a schizophrenic had sublet his Council flat whilst suffering from a schizophrenic episode. The legal consequence of subletting his flat was that he lost his status as a secure tenant and therefore had no statutory protection. The Council served a notice to quit and argued that since he had no statutory protection they had unfettered common law right to possession.

The Court of Appeal held that Mr Malcolm as a disabled person was entitled to the protection of the DDA and that since the reason for the service of the notice to quit and the possession order was related to Mr Malcolms, disability the service of the notice to quit and possession order would amount to discriminatory conduct on the part of the Council. In such circumstances the Court accepted the submissions of Sylvester Carrott, Counsel for Mr Malcolm, that the Court was precluded from making an order for possession since would amount to unlawful discrimination under the DDA.

The case goes considerably further than any previous case law in holding that the DDA takes precedence over the landlordÕs common law and statutory right to possession and that the Act itself affords a defence to claim for possession if the landlordÕs actions amount to discriminatory conduct. Moreover the Court held that the landlord need not have knowledge of the disability before the protection of the Act came into operation.

The Disability Rights Commission intervened in the case to put forward the view that the Court should in certain circumstances be justified in refusing possession. However the tenantÕs submissions, which went considerably further, were accepted by the Court which accepted the bold proposition that faced with a case where eviction would amount to disability discrimination, the Court would be precluded from making an order for possession.