Athough a housing case the decision of Lewisham LBC v.

Malcolm will have significant

implications for schools who, since 2001, are under an obligation to ensure they do not
discriminate against disabled pupils.

The law on disability discrimination had gone awry with the decision of Clark v Novacold Ltd
(1999) which held that when looking at the treatment afforded to a disabled person it was
appropriate to make a comparison with the treatment of someone who did not have that disability,
if the reason for the treatment related to the disability.

That, said the the House of Lords, was the wrong approach. Indeed, in applying that approach to
this case - which involved the eviction of a disabled tenant who sub-let their property in breach of
their tenancy agreement - would lead to an absurdity. A tenant who did not sub-let (being the
Novacold-type comparator) would never be the subject of enforcement action from the housing
authority.

The correct approach - set out succinctly by Lord Bingham - was to ask: was the reason for the
treatment a reason related to Mr Malcolm’s disability? In this case, no. The reason was a
housing management decision unrelated to the disability. (My own view is that paragraph 10 and
11 of the judgment is difficult to understand. Bingham accepts that but for his disability he would
not have sub-let, but still finds the reason unrelated - calling it a housing management decision.
Lord Scott goes further and suggests that the disability must have ‘played some motivating part in
the mind’ of those responsible the treatement. ) The comparator was not, as per Novacold, with
tenants who did not sub-let, but rather to those, without a disability, who did sub-let.

The implications of this case in the school arena remain to be seen. A common complaint of
disability discrimination arises in exclusions. It could be argued that a disabled child (whose
disability manifests itself in behavioural problems; ADHD, autism, for example) who is excluded
because of misbehaviour should be compared to a non-disabled child who misbehaves. If
exclusion was an appropriate sanction for the latter, then it would not be less favourable
treatment of the former - the decision to exclude being simply an enforcement of the behaviour
policy of the school. If, however, the sole reason for the exclusion was because of the disability,
arguably that is unlawful discrimination.

For the future the focus of the discrimination claims will be the obligation to make reasonable
adjustments. It may be that there is no less favourable treatment of a child who misbehaves
because of their disability, but there will still be a duty to ensure reasonable steps are taken to
ensure that the disabled child is not placed at a substantial disadvantage. Those steps could be
many and various.