Malcolm reversed

Landlords the length and breadth of the country will (or should) be celebrating the House of Lords decision in the leading case of Lewisham v. Malcolm, (discussed by me previously here) and the reversal of the previous Court of Appeal decision. This denied Lewisham a possession order on the basis that Mr Malcolm’s subletting of his flat (which in normal cases would have entitled Lewisham to an order for possession without question) was as a result of his disability (schizophrenia), and that their claim for possession was therefore discriminatory.

This raised the worrying (for landlords) possibility of disabled tenants being unevictable, no matter how serious their rent arrears (for example). Or, as Mr Bernstein found, unevitctable under the section 21 procedure, if they are disabled, even if the landlord did not know this.

However it now looks as if these fears are groundless (other than for poor old Mr Bernstein who should have had his possession order months ago) and possession orders will in future only be denied to landlords in cases of obvious discrimination.

Lawyers are less happy with the decision, which they say messes up established employment law principles.

The Malcolm decision is a very long one and although I have tried to read it, it is past 11.00pm (at which time I start to fade ...) and it is difficult to stop my eyes from glazing over. No doubt an authoritative analysis will be posted in due course by Nearly Legal. So I will leave it to him, and go to bed.