Published: 11 Sept 2018 by Rhea Newman

This blog was written jointly with Rose Arnall in Shelter’s Legal Services.

The launch of our campaign to end DSS discrimination against renters on housing benefit has suggested that some landlords and letting agents may not be fully up to speed on how their policies could be putting them at risk of breaching the Equality Act 2010.

So we’ve put together some top tips to advise landlords and agents on how best to avoid discrimination.

Avoiding direct discrimination 

Most landlords and agents understand that it is unlawful to directly discriminate against people with ‘protected characteristics’ under the Equality Act 2010. This means landlords and agents cannot treat someone less favourably than others just because of their age, sex, disability, race, religion or belief, sexual orientation, marriage and civil partnership, pregnancy and maternity, or gender reassignment.

For example, if an individual branch or member of staff in a letting agency says that someone cannot apply to rent a property they have advertised just because of their race, that would be unlawful direct discrimination.

The notorious Fergus Wilson is one obvious exception to the usual rule of landlords understanding direct discrimination. Mr Wilson was found guilty of breaching the Equality Act for banning people of Indian and Pakistani origin from his properties. He is also currently being investigated again by the Equalities and Human Rights Commission (EHRC) for evicting mothers with newborn babies. As Giles Peaker from Nearly Legal highlighted, perhaps making a conviction under the Equality Act a banning order offence would be an effective deterrent from future offences.

Avoiding indirect discrimination

It’s just as important to make sure none of your policies and practices are indirectly discriminating either. Indirect discrimination occurs where a practice is not discriminatory in itself but puts people with a protected characteristic at a particular disadvantage when compared to others.[1]  A policy or practice does not necessarily have to be a formal written policy. In law, a policy or practice can be less formal and could even relate to a one-off decision.

Say, for example, a letting agent branch says that someone cannot apply to rent a property they have advertised because they’re in receipt of housing benefit. Although being a benefit recipient is not a protected characteristic, our research suggests this practice puts women and those with a disability at a disadvantage (as they are more likely to require housing benefit than others).

So, unless this practice can be justified as ‘a proportionate means of achieving a legitimate aim’, that would be unlawful indirect discrimination. As pointed out by James Welch, former Director of Liberty, when it comes to refusing to even consider someone’s application to rent a property because they receive housing benefit, ‘it’s hard to see what such a legitimate aim might be.’

Interestingly, indirect discrimination can also occur when someone is deterred from doing something, such as applying for a job, because a policy will be applied that would result in their disadvantage. This suggests that simply advertising ‘No DSS’ could be an example of unlawful indirect discrimination as these adverts will deter people on housing benefit from applying to properties that would otherwise be suitable and affordable for them.[2]

Avoiding discriminating because someone else told you to

All of the above may be familiar to you. But did you know you can also be liable for discrimination when you’re following someone else’s instructions?

EHRC guidance states that as well as not unlawfully discriminating against a client themselves, property agents should not accept an instruction to discriminate from a property seller or landlord. For example, if a landlord asks a letting agent to say their flat is taken if someone from a particular ethnic background asks about renting it, when the agent agrees they would be just as liable as the landlord for direct discrimination because of race. You may think this type of discrimination is unlikely to happen in the 21st century, but an undercover BBC investigation in 2013 highlighted that some letting agents were willing to discriminate in this way.

In the context of our campaign, this means that letting agents who take instruction from landlords not to let their property to anyone on housing benefit could still be accountable for unlawful indirect discrimination, even if it’s not their own company’s policy.

20% of branches in our mystery shopping research said there were no properties available because no landlords currently let to people on housing benefit. All these letting agents could be at risk of breaching the Equality Act by following landlords’ instructions not to consider applications from people just because they are in receipt of housing benefit.[3]

Our top tip

Breaching the Equality Act could be highly costly for landlords and letting agents. Even though the case was settled out of court, Rosie Keogh’s case took 18 months and the letting agents ended up paying their own legal fees as well as £2000 in compensation.

So, what should landlords and agents do if they want to minimise their risk of breaching the Equality Act?

Well it’s actually really simple – consider every tenant on a case by case basis and avoid any blanket policies which prevent certain people applying to your property.

No one is saying that landlords should be forced to take on any tenant without considering their suitability and whether they can pay the rent. But they should assess each application individually.

And for anyone who doesn’t trust our advice, you can find further advice in blogs from the Landlord Law Blog, Anthony Gold and QC Rachel Crasnow.

[1] For those who are really interested, more information on indirect discrimination can be found in Chapter 5 of the EHRC Code of Practice.

[2] Paragraph 79 of the Explanatory Notes to the Equality Act 2010

[3] Analysis by Shelter, mystery shopping fieldwork carried out by independent MRS accredited research agency Mystery Shoppers Ltd. Responses are only categorised if they definitively meet the criteria; responses with any element of doubt are not included.