Monitoring the Disability Discrimination Act (DDA) 1995 - Centre for ...

was common ground that she was fell within the definition of
disability by virtue of ‘psychotic illness, possibly
schizophrenia’. The appellant contended that the possession
order constituted eviction and was therefore unlawful under
DDA. The county court had ruled that although the
possession order was unlawful under the DDA, in the
circumstances of the case it was not appropriate for the Act to
override a discretion accorded to the courts by the Housing
Act 1988.
On appeal, the High Court considered first whether the
appellant had been subjected to less favourable treatment.
Applying the reasoning in Clark v Novacold Ltd 1 , it examined
whether the reason for eviction related to disability. It held
that it did, finding that,
"…the overwhelming preponderance of her bizarre and
unwelcome behaviour is attributable to her mental
illness, which forms her disability." 2
It rejected an argument that the appropriate comparator was
another tenant behaving as the appellant had done, and
concluded that she had been subjected to less favourable
treatment.
Was this justified on the basis that it was necessary "in order
not to endanger the health or safety of any person (including
the disabled person)"? Applying stage one of the two-stage
test of justification, it found that there was no evidence that
the respondent landlords had ever formed this opinion. Of
itself, this finding was enough to defeat the justification
defence, which requires that both stages be satisfied.
Nevertheless, the High Court moved on to the second stage.
At the county court, the Recorder had found on the facts
before him that,
1 [1999] IRLR 318.
2 Ibid at [18].
321