Home Law

How and when are you protected?

The Equality Act 2010 (EqA) protects certain characteristics where evidence shows there is still significant discrimination in employment, provision of goods and services and access to services such as education and health. These are:

1. Age;

2. Disability;

3. Gender reassignment;

4. Marriage and civil partnership;

5. Pregnancy and maternity;

6. Race;

7. Religion or belief;

8. Sex; and

9. Sexual orientation.

Discrimination can take different forms. The EqA prevents: direct discrimination; indirect discrimination; harassment; and victimisation (referred collectively below as ‘unlawful discrimination’).

Part 4 of the EqA makes it unlawful to discriminate against a person when disposing of (for example, by selling or letting) or managing premises. Examples of conduct which may be discriminatory include:

◦ Refusing to let to someone;

◦ Imposing different terms on which they offer to let to someone;

◦ Treating differently a person seeking to rent a property; and

◦ Taking steps to evict the person.

In Black & Anor v Wilkinson [2013] EWCA Civ 820 (09 July 2013) a bed and breakfast owner had a policy of refusing to let double rooms to unmarried couples, this was held to unlawfully discriminate against gay couples (The Marriage (Same Sex Couples) Act 2013, was passed on 17 July 2013).

Consequences

A person who has been the victim of any form of unlawful discrimination is entitled to apply to the County Court for damages (compensation for injured feelings), an injunction to compel compliance with the EqA, and any other remedy which the High Court could award on a claim for judicial review (such as a declaration; a quashing order; a mandatory order; or a prohibitory order).

Importantly, when a possession claim amounts to unlawful discrimination, a defendant may defend the claim on that basis, and if successful the court must dismiss the claim. If damages have been claimed these can offset any rent arrears. However, unlawful discrimination can sometimes be permissible, if it is a proportionate means of achieving a legitimate aim (i.e. there is ‘objective justification’).

The burden of proof

The burden of proof is on the landlord/agent to show that either there is no discrimination, or (where it applies) that there is objective justification.

The types of unlawful discrimination

Direct

Direct discrimination occurs where a person treats another person less favourably because of a protected characteristic (s13 EqA). For example, a landlord refuses to let properties to people of a certain ethnic group.

Direct discrimination is only capable of being justified in extremely limited circumstances. There can be objective justification on the basis of age or positive action towards a disabled person.

Harassment

Harassment is defined as ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’ (s26 EqA).

Harassment applies to all protected characteristics except for pregnancy and maternity, and marriage and civil partnership. There is not an objective justification defence.

Victimisation

Victimisation occurs when a service provider subjects a person to a detriment because the person has carried out (or is believed to have carried out) a ‘protected act’ (s27 EqA).

A protected act includes making an allegation that someone has breached the EqA, as well as bringing proceedings under the Act or giving evidence in proceedings.

The victim does not need to have a protected characteristic in order to be protected from victimisation under the EqA. For example if they are supporting a person with a protected characteristic who is making a claim.

Indirect

Indirect discrimination is where a provision, criterion or practice (PCP) puts a person with a protected characteristic at a particular disadvantage (s19 EqA).

There can be objective justification of indirect discrimination.

Discrimination arising from disability is a special form of indirect discrimination applicable to disabled people treated unfavourably because of something arising in consequence of their disability.

Discrimination arising from disability can occur where a landlord treats an occupier less favourably because of something connected with their disability (not the disability itself, but something which arises in consequence of the disability, including anything which is the result, effect, or outcome of the disability, for example behavioural issues) (s15 EqA).

It is a defence to a discrimination claim if the landlord did not know, or could not reasonably have been expected to know that the occupier is disabled.

Objective justification in practice

What constitutes a legitimate aim for a social landlord and a private landlord will at times be different, as will what constitutes a proportionate means of achieving that aim.

Generally, an action, such as seeking possession, will only be proportionate if it:

1. Pursues a legitimate aim;

2. Is rationally connected to the legitimate aim;

3. Is a measure which is no more than is necessary to achieve the legitimate aim (where alternatives exist, they will likely have to be explored); and

4. Does not produce an excessive or disproportionate effect.

Accordingly, the mere fact that it can be taken as a given that a landlord is seeking possession for legitimate aims – the vindication of its ownership rights and managing its housing stock – is not sufficient to counter a disability discrimination defence.

Akerman- Livingstone v Aster Communities Ltd [2015] UKSC 15 (11 March 2015) as per Lady Hale at para 31:

‘No landlord is allowed to evict a disabled tenant because of something arising in consequence of the disability, unless he can show eviction to be a proportionate means of achieving a legitimate aim. He is thus obliged to be more considerate towards a disabled tenant than he is towards a non-disabled one. The structured approach to proportionality asks whether there is any lesser measure which might achieve the landlord’s aims. It also requires a balance to be struck between the seriousness of the impact upon the tenant and the importance of the landlord’s aims.’

The structured approach derived from Akerman-Livingstone is to ask:

1. What are the claimant’s aims or objectives in taking steps for the purpose of securing the defendant’s eviction?

2. Is there a rational connection between the claimant’s objectives and the defendant’s eviction?

3. Is the eviction of the defendant no more than js necessary to accomplish those objectives?

4. Is the eviction proportionate in the wider sense, or in other words, does the eviction strike a fair balance between the claimant’s need to accomplish its objectives and the disadvantages thereby caused to the defendant as a disabled person?

Rent arrears possession cases

The reduction of rent arrears is a legitimate aim.

A depressed and anxious tenant of a social landlord could defend a claim for possession by arguing that eviction is a greater interference than necessary with their right not to be subjected to discrimination if, for example, assistance with an underlying benefit problem might reduce the arrears.

In Ratcliffe and Ratcliffe v Paterson (17 March 2020) (Case of disability discrimination against a private landlord) the tenant had been diagnosed with ‘multiple health problems including; obstructive sleep apnoea, fibromyalgia, asthma, irritable bowel syndrome, chronic joint and back pain, mixed anxiety, as well as panic disorder and depressive disorder’ which had caused rent arrears to accrue. The claimant landlord was not able to show that there was objective justification. ‘The court applied the test set out in Akerman-Livingstone v Aster Communities Ltd [2015] UKSC 15 and was satisfied that the landlord was able to satisfy the first two limbs of the test. Namely that, the objective of restarting the income stream from the property was sufficiently important to justify limiting a fundamental right, and issuing possession proceedings are rationally connected to this aim. However, the court found against the landlord in respect to the last two limbs of the test. It was found:

‘Mr and Mrs Ratcliffe should have requested direct payment of the housing element of Miss Patterson’s universal credit, and in any event they should have sought a meeting with Miss Patterson to discuss bringing her rent account back into good order. It was disproportionate to proceed at the earliest opportunity to possession proceedings on the mandatory ground, without having taken one or the other or both of those steps. Alternatively, they could have commenced possession proceedings (and a money claim for rent) on the discretionary grounds alone’.

Anti-social behaviour

The curtailment of anti-social behaviour is a legitimate aim.

Where it can be argued that the nuisance results from a mental health problem or learning difficulties, the tenant may be assisted by considering whether the provision of care, social or medical services would be sufficient to reduce or alleviate the nuisance so that eviction is not necessary to achieve the legitimate aim of bringing the nuisance to an end.

In Heart of England Housing Association v M (22 October 2018) the court found that Mr M’s anti-social behaviour, which was the result of his disability, could be managed with adequate support and that Heart of England had not liaised with nor notified the relevant support networks so that it could be provided.

No DSS – refusing to let to benefits claimants

Income and employment status are not protected characteristics. Accordingly, it would not usually be direct discrimination if a landlord or agent refused to let a property to a person just because they relied on welfare benefits to pay their rent.

Refusal to let to someone who claims benefits may amount to indirect discrimination if benefit claimants are more likely to have a protected characteristic.

In a non-binding County court case heard on 1 July 2020 (http://nearlylegal.co.uk/wp-content/uploads/2020/07/20.07.02-Redacted-Court-Order.pdf?utm_source=mailpoet&utm_medium=email&utm_campaign=new-on-nearly-legal-newsletter-total-new-posts_1) it was found that:

‘a No DSS policy puts or would put women at a particular disadvantage… in the private rented sector…women are more than 1.5 times as likely to rely on Housing Benefit, and thus be excluded by a No DSS policy, than men’; and

‘a No DSS policy puts or would put persons who are disabled at a particular disadvantage… disabled households are almost five times as likely to rely on Housing Benefit, and thus be excluded by a No DSS policy, than non-disabled households’.

In a non-binding County Court case (Tyler v Paul Carr Estate Agents [2020] EW Misc 30 (CC) (08 September 2020) ) the claimant had a protected characteristic of disability. It was held in summary that:

‘in applying a “No DSS” rule to the three properties Mr Tyler was interested in renting, the Defendant, Paul Carr Estate Agents, applied a PCP to all prospective tenants which puts disabled people in receipt of disability benefits at a particular disadvantage when compared with those who are not disabled and in receipt of disability benefits. It also put Mr Tyler at that disadvantage and Paul Carr Estate Agents did not seek to justify the disproportionate impact and group disadvantage to disabled people and have unlawfully discriminated against Mr Tyler.’

In a House of Commons Research Briefing, ‘Can private landlords refuse to let to benefit claimants and people with children?’ (30 October 2023) (https://researchbriefings.files.parliament.uk/documents/SN07008/SN07008.pdf) it is said that a landlord whose mortgage lender has imposed a condition not to let to Housing Benefit claimants might cite this as a reasonable justification. But that Shelter rejects this proposition:

‘Section 142 of the Equality Act 2010 provides that a term of a contract that constitutes, promotes or provides for unlawful discrimination, may be unenforceable. We take the view that this may apply to both mortgage & insurance terms and conditions that are unlawfully discriminatory’.

*The above entry was made possible by reference to: Shelter Legal, Housing Possession Duty Desk (https://www.lag.org.uk/shop/book-title/209683/housing-possession-duty-desk—a-practical-guide) and Defending Possession Proceedings (https://www.lag.org.uk/shop/products/211519/defending-possession-proceedings).