Disability discrimination

Disabled people can face many barriers, which can have a negative impact on their quality of life. These barriers can take physical or environmental forms (such as difficulties in moving from place to place, entering and moving within buildings, or in obtaining access to services) or can manifest themselves in assumptions that people falsely make about disabled people, which affect the way those people interact with disabled people.

The Equality Act 2010 ('the 2010 Act') defines direct discrimination as;

• where A treats B less favourably than A treats, or would treat other people because B has a protected characteristic. Therefore, if a service or housing provider treats a disabled person less favourably, for a reason relating to their disability, than it would treat another person who did not have that disability, then this is direct disability discrimination [1] or;

• where a landlord fails to make reasonable adjustments to accommodate a disabled person in specified circumstances and, again, is unable to justify that failure. [2]

The 2010 Act makes it unlawful to discriminate against a disabled person: [3]

• by offering a property on worse terms than for a non-disabled person

• by refusing to sell or let a property

• by treating a disabled person less favourably in the maintenance of housing lists, eg a local authority waiting list

• by treating the disabled person differently in the way in which s/he is allowed to make use of facilities

• by preventing the disabled person from using benefits or facilities

• by evicting the disabled person or subjecting them to any other form of disadvantage (eg physical attack, damage to property, verbal abuse) affecting their peaceful enjoyment of the premises.

Examples given in the Equality and Human Rights Commission (EHRC) Code of Practice of situations that may constitute less favourable treatment include:

• a landlord requiring a higher deposit from a disabled tenant than s/he would require from a non-disabled tenant, as s/he believes the tenant would be less reliable in paying the rent

• a housing association with a policy of offering applicants with a history of mental health problems short-term tenancies, as it believes that the tenants may act antisocially because of their disability

• a landlord evicting a tenant when s/he discovers that the tenant has been diagnosed HIV positive.

The 2010 Act imposes a duty on landlords and others who manage rented premises to make reasonable adjustments for disabled occupiers. [4] Adjustments to the physical features of the property are not covered, however the regulations list adjustments that are not to be treated as physical features, including the replacement of taps or door handles, and the replacement, provision or adaptation of a doorbell or door entry system. Additionally, the landlord may be obliged to change a term of the letting, or to give consent, to allow the tenant to make their own adjustments to physical features, eg allowing a tenant to install a stair-lift. [5]

Other examples of a landlord making reasonable adjustments could include:

• providing a tenancy agreement in large print for a visually-impaired tenant

• providing a portable ramp so that a disabled tenant can use a wheelchair to get in and out of their property

• changing a ‘no pets’ rule to allow a disabled tenant to have an assistance dog.

The 2010 Act makes it unlawful to treat a tenant unfavourably because of something arising in connection with their disability and the landlord cannot show that their treatment of the tenant is a proportionate means of achieving a legitimate aim [6]. For example, if a tenant has a mental condition that affects the way that they behave, and they are being evicted because of behaviour connected to their disability, then s.15 of the 2010 Act offers them protection.

This reverses the English case of Lewisham LBC v Malcolm. [7] The facts of the Malcolm case are as follows: Mr Malcolm was a secure tenant who suffered from schizophrenia. He had sublet his tenancy, breaching the terms of his tenancy agreement. Under English law [8] this led to him losing his secure tenancy status and consequently the local authority was able to apply for possession. Mr Malcolm claimed that his schizophrenia was reason that he sublet the flat, and hence he had been discriminated against by the local authority. The local authority was not aware of his schizophrenia. In its decision the House of Lords decided that in considering s. 24(1)(a) of the Disability Discrimination Act 1995 Mr Malcolm should be compared to someone who did not have a disability but had still sub-let the flat. In those circumstances, the local authority would have evicted the person and would have been justified in doing so. Comparing Mr Malcolm to such a person meant that he had not been treated less favourably and, therefore, there was no discrimination.

What section 15 of the 2010 Act now allows is for a claimant to demonstrate that their behaviour arose from their disability. So, under the 2010 Act, Mr Malcolm would have been able to show that he sublet his flat because of his schizophrenia and the local authority's actions would have amounted to discrimination.

The provisions on less favourable treatment and reasonable adjustment do not apply to landlords of certain small dwellings. For example, resident landlords and landlords letting out rooms in a property which is also occupied by the landlord's family. [9]

Discriminatory treatment is justifiable under the Act if the landlord can prove her/his actions were necessary to protect the health and safety of any person, or to enable the disabled person or other occupiers to use the property, and in certain other situations.

Actions for loss occasioned by discrimination on the ground of disability must be brought in the sheriff court. [10] Actions must be raised within six months of the act of discrimination or nine months of the act if it is first referred to conciliation. [11]

Before 1 October 2010 the law relating to eviction and disability was slightly different. As previously mentioned, the case of Lewisham LBC v Malcolm, the facts of which are summarised above, had authority before s.15 of the 2010 Act came into force. The case itself is quite complicated and in terms of discrimination arising from a disability only affects cases where the discrimination took place before 1 October 2010.

The case itself follows on from Manchester City Council v. Romano; Manchester City Council v. Samari [12] and centres on section 22(3)(c) of the now repealed Disability Discrimination Act 1995 (‘the 1995 Act’) which states that 'it is unlawful for a person managing any premises to discriminate against a disabled person occupying those premises ... by evicting the disabled person, or subjecting him to any other detriment'. The decision also refers to the legal definition of discrimination in relation to premises. Section 24(1) of the 1995 Act defines ‘discrimination’ in relation to premises as ‘disability-related discrimination’, therefore, where a disabled person is treated ‘less favourable than other without the condition or disability and where the treatment of the disabled person is not justified’. In overruling a decision of the Court of Session, the House of Lords decided that under the Disability Discrimination Act 1995;

• The Court of Appeal was wrong to say that it did not matter that the council did not know about Mr Malcolm's disability, as the effect of this would be too wide-reaching. In other words, if no knowledge of a disability was required to discriminate against someone, then anyone could be accused of discriminating against people (whether they be tenants, employees, customers, and so on) without even knowing that they were doing so.

• In considering section 24(1)(a) of the 1995 Act, the Court of Appeal had compared Mr Malcolm to the wrong person. Instead, the House of Lords decided that Mr Malcolm should be compared to someone who did not have a disability but had still sub-let the flat. In those circumstances, the council would have evicted the person and would have been justified in doing so. Comparing Mr Malcolm to such a person meant that he had not been treated less favourably and, therefore, there was no discrimination.

The House of Lords decision is clearly a restrictive application of the 1995 Act which reduces the protection offered to tenants under the Act. Consequently, any tenants relying on the pre 2010 Act legislation would have to be able to satisfy the court:

• firstly, that the owner or landlord was aware of the tenant's disability, and

• secondly, that the owner or landlord has treated the tenant less favourably (for example, by trying to evict them) than they would have treated a tenant who is not disabled.

The Malcolm case is very complex and so are the implications of the decision. Advisers who intend to pursue an argument under the 1995 Act should bear this case in mind and obtain specialist legal advice before doing so.

The EHRC Code of Practice 'Rights of Access: services to the public, public authority functions, private clubs and premises' gives in-depth practical guidance regarding less favourable treatment, grounds that constitute discrimination, and reasonable adjustments. [13] The Code refers to pre 1 October 2010 legislation and is not binding, but it is authoritative guidance and the courts have to consider whether it has been complied with.

The EHRC has statutory duties to: [14]

• work towards eliminating discrimination against disabled people

• promote equal opportunities for disabled people

• encourage good practice in the treatment of disabled people

• advise the Government on the working of disability legislation.

It can provide specific assistance to disabled people, including assisting them in enforcing their rights, and arranging legal advice and mediation where appropriate. It also provides advice and information to disabled people, employers, and service providers. The EHRC have published guidance for service users informing them of their rights under the 2010 Act. For more information contact the EHRC.