Lords ruling is huge setback for discrimination law

Disability organisations and lawyers have said that a decision made by the Law Lords – the highest UK court - is a huge setback for disability discrimination law.

The decision said in effect that a disabled person who made a mistake could not receive special protection based on their impairment, and that they could not be discriminated against if the other party did not know they were disabled.

The Lords found that the London Borough of Lewisham did not discriminate when it evicted a man with schizophrenia for subletting his council house, because the borough would have treated any other tenant in the same way. The man said he had only sublet the flat because he stopped taking his medication.

Eleanor Williams, a disabled lawyer who specialises in discrimination for the firm Darwin Gray and is a director of the Discrimination Lawyers’ Association, said afterwards that it was a “hugely important” decision that in effect brought disability discrimination into line with the other strands of discrimination law.

She believes the Law Lords wanted to “neaten” the various strands of discrimination law, but were wrong to do so.

“The test is [now]…if you weren’t disabled would you be treated like this. It is hugely important, because this is the House of Lords saying that disability is a fact, in the same way that being black is a fact.

“But disability is much more than a fact. It’s a way of life, it’s a social phenomenon and that difference is not recognised by this case.”

An EHRC spokeswoman said: “This House of Lords judgement is a major set-back. It has seriously undermined one of the features which marks disability discrimination law from other equality law - the recognition that the avoidance of discrimination sometimes demands that disabled people are treated differently rather than in exactly the same way as others.”

She said the EHRC would urge the government to “rectify” the decision though the equality bill and would explore possible opportunities presented by the proposed European Union equal treatment directive.

Mind's policy director, Sophie Corlett, added: "This case raises serious questions about the way that the state treats people with mental health problems who occupy social housing. This is a big and quite common issue and one that needs to be considered carefully."  

Meanwhile, housing lawyers at Greenwoods Solicitors have said the Lords ruling “seems to be good news for landlords defending claims under the DDA”.

And Dorothy Henderson, a partner at city lawyers Travers Smith, said the government may have to propose changes in its new equality bill to deal with the implications of the decision on 26 June.

Ms Henderson said: “This case has caused a stir in the field of disability discrimination law. The case, although involving housing, has significant implications in employment. As such, it potentially affects every business in Britain.

“The decision drives a coach and horses through one of the fundamental concepts of the legislation on this topic. The result is that employees will find it much more difficult to succeed in tribunal claims for disability discrimination.”
4 July, 2008