Two recent legal decisions will have a massive impact on disabled people’s rights, and they pull in opposite directions.

Firstly, and distressingly, the Law Lords in a majority decision have overturned the Court of Appeal decision in Malcolm v Lewisham.

The shocking thing is the grounds on which they have overturned it, which runs roughshod over judgements from other case law, and it now seems it will be almost impossible to have a successful disability defence to a repossession order. But this has a much wider impact than just housing law, and calls into question employment side judgements too.

As I understand it, past case law meant you compare the disabled person with themselves if they didn’t have the impairment to find out if there was disability-related discrimination, whereas this decision says you compare the person with a non-disabled person.

The question in Malcolm then, according to the Law Lords is – would a non disabled person have had a repossession order for breaking the tenancy agreement in this way?(yes) If so, then Malcolm is not protected by the law. Which pretty much renders that part of the law meaningless. It seems to overturn a body of case law arising from decisions on long-term absence, absense to do with medical appointments etc.

The bottom line is it severely weakens disabled people’s protection under the law.

At the other end of the spectrum, European Law Lords have this week found in favour of Coleman – this was a case where a non-disabled mother of a disabled son had extra time off to care for her son and was sacked for it. The European Court say she should have protection from this under the law, on the grounds of “discrimination by association”.
Is it possible now that carers of disabled people will have greater rights under the DDA then disabled people themselves?


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