Archive for July, 2008


Disability discrimination legislation is well established.  Employers, service providers and managers of property are amonst those who must not treat a disabled person less favourably than they would treat others.  But with whom is the comparison made?

In the first case to come before the House of Lords in this area of law, a Mr Malcolm, who suffered from schizophrenia, leased a flat from Lewisham Council.  Under the terms of his lease, he was to occupy the flat as his only or principal home and could not sub-let.  He vacated the flat and sub-let it.  The Council sought possession, a claim which Mr Malcolm defended on the basis of discrimination as his disability prevented him from understanding the consequences of his actions.

The House of Lords (Baroness Hale dissenting) held the Council’s treatment of Mr Malcolm was to be compared with the treatment they would apply to others, suffering a disability or not, who had sub-let in breach of their lease.  Their Lordships held the task of the court is to ascertain the real reason for the treatment and that it is not the purpose of the legislation to protect disabled persons from lawful litigation or supply a defence to a breach of the law.  In so holding, the House of Lords overturned previous Court of Appeal decisions.

Lord Scott underlined the result of the House of Lords’ findings.  He referred to the example of a blind man with a guide dog wishing to enter a restaurant which does not permit dogs.

“If he is refused entry, it is not because the man is blind but because he is accompanied by a dog and is not prepared to leave his dog outside.  Anyone, whether sighted or blind, who was accompanied by a dog would have been treated in the same way.  The reason for the treatment would not have related to the blindness; it would have related to the dog.”

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