One of the changes made by the Equality Act 2010, the main provisions of which came into force on 1 October 2010, is to make it easier for a claimant to establish a case of ‘disability-related discrimination’, which was made more difficult following the decision in London Borough of Lewisham v Malcolm. In that case, the House of Lords ruled that a disabled tenant who was evicted from his flat for breach of the terms of his tenancy agreement (he had sub-let the flat in contravention of the lease terms) had not suffered discrimination despite the fact that he suffered from schizophrenia. The Court ruled that the Council, which was unaware of his condition, would have treated any other tenant the same way.
The Act replaces the concept of disability-related discrimination with a new protection from discrimination arising from disability. This means that a person discriminates against a disabled person if they treat them unfavourably because of something arising from, or in consequence of, their disability, with no requirement for a comparator. In circumstances similar to those in Malcolm, a landlord would have to show that the treatment of a disabled tenant was a ‘proportionate means of achieving a legitimate aim’ in order to defeat a claim of disability discrimination against them. The Act does, however, provide a defence where the landlord can show that it did not know, and could not reasonably have been expected to know, that the tenant had a disability.
The Act also contains a new right for disabled tenants of residential or mixed-use premises, whereby they can request that the landlord make physical changes to the common areas of a building, such as hallways and stairs, in order to meet their needs, where such changes are reasonable.
In such circumstances, the landlord and the disabled person must agree in writing the rights and responsibilities of each of them with regard to the adjustments being made. The agreement must include the responsibilities of each with regard to:
the cost of any work to be undertaken;
other costs arising from the work; and
the restoration of the common parts to their former condition if the disabled person stops living in the premises.
The landlord can insist that the disabled person covers the cost of the adjustments, and of any restoration work should they vacate the premises.