Absolutely the DDA applies for private landlords, that wasn’t quite what I was suggesting.

As far as I can see, for the DDA defence to be raised against an s.21, the tenant would have to be able to adduce sufficient evidence to show that the claim was brought for a reason related to the disability. So the initial burden will be on the tenant. In that situation, I would think that the landlord’s awareness would be required, if not technically, then just to establish the defence in practice. It isn’t going to be the easiest defence, for sure. The landlord still has the defence of justification.

I’m not sure about ‘clearly’ discriminatory, just discriminatory should do, surely.

Landlords refusing to take disabled people would be dreadful. If fear of a contested eviction will do that, then it should be clear to landlords that the DDA applies in specific circumstances – that if they attempt to use s.21 to cover an eviction of a tenant for a reason related to their disability, there is a defence and they may have to be prepared to justify their actions.

(Also on Nearly Legal)

However in an article in the September issue of LAG, the authors commented “Malcolm has major implications for any eviction proceedings involving disabled people, regardless of whether the landlord is a local housing authority, registered social landlord or private individual“. So it looks as if they consider that a successful defence against a private landlord under the DDA is a definite possible.

Hopefully a DDA defence will only be accepted, in the context of private landlords, in circumstances where the landlord was fully aware of the disability and acted in a way which was clearly discriminatory. Otherwise I can see private landlords refusing to take disabled people (particularly those with mental problems) as tenants. They may start doing this anyway. They will not want to become involved in contested evictions – even if they eventually win, it will have been a costly and time consuming exercise, best avoided.

I posted on Lewisham v Malcolm a few days ago. I’ve just posted a follow up, partly in response to this post, because I don’t think the implications for s.21 are quite what you suggest here. In particular, I think the DDA does not change s.21 and is only applicable in certain situations, even where the tenant is disabled. Detailed argument on Nearly Legal…