In this case, the tenant’s breach of contract was not caused by his disability; the landlord had not sought possession for a reason connected with his disability and, in any event, he had not been treated differently than a tenant without that disability who had committed the same breachWednesbury unreasonableness:disability discriminationWednesbury unreasonableness:no different treatment, where there has beenWednesbury unreasonableness:sub-letting

Facts: Mr Malcolm was a secure tenant of Lewisham but Lewisham brought possession proceedings against him, on the ground that he had sub-let his flat. Mr Malcolm defended proceedings on the basis that he was a disabled person, that the sub-letting flowed from his disability and that it would be incompatible with sections 22 and 24 of the Disability Discrimination Act 1995 to make a possession order.

Judgment: the House of Lords (Lords Bingham and Scott, Lady Hale, Lord Brown and Lord Neuberger: Lady Hale partially dissenting) held that it would not amount to discrimination in breach of the Disability Discrimination Act 1995 to make a possession order against Mr Malcolm, albeit that he was a disabled person: first, on the facts, Mr Malcolm had not sub-let because of his disability; second, the landlord had not sought possession for a reason that related to Mr Malcolm’s disability but because he had sub-let his flat; and third, the correct comparator for deciding whether Mr Malcolm had been treated less favourably than others was a person without a mental disability who had sub-let in breach of contract: such a tenant would also have been evicted, so there was no discrimination; fourth, since the landlord had not known of Mr Malcolm’s disability, that could not have played a part in the landlord’s thinking and statutory discrimination could not have occurred.

Comment: section 15 of the Equality Act 2010 (not in force at the time) requires an adjusted approach, providing that the tenant’s actions do, on the facts, stem from their ‘disability’ and the landlord knew, or reasonably ought to have known, of the disability: where the tenant’s actions arise out of their disability it will be unlawful to treat them unfavourably unless that is a proportionate means of achieving a legitimate aim. That seems to by-pass the need to identify a specific comparator in the way chosen in Malcolm: see Akerman-Livingstone v Aster Communities Ltd, below at para 6.18.1[2015] UKSC 15, [2015] 2 WLR 721.