On 26th February the BBC ran an article headlined “Landlords who say ‘no DSS’ breaking equality laws.” The article seems to be a little misleading because there has been no court determination and the case was in fact settled out of court.
A tenant occupying a property for some 11 years without an adverse rental history applied to rent a new property in Birmingham. However, when the prospective tenant advised an agent that some of the rent would be settled by way of housing benefit the agent appears to have rejected the application. We understand from the article that the agent operated a blanket ban on all prospective ‘DSS’ tenants.
The prospective tenant complained about the decision to the agent however, the complaint appears to have been dismissed out of hand. The prospective tenant therefore issued a claim for discrimination.
Specifically, the claim issued was on the grounds of indirect sex discrimination, on the basis that women were disproportionately affected by a ‘no DSS’ type ban because they were more likely to work part time and claim housing benefit.
Indirect discrimination occurs when a policy applied to everyone has the effect that people with a certain protected characteristic are put at a disadvantage when compared to those that do not share it. The protected characteristics are: age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation. So, for example a ‘no dogs’ policy is likely to discriminate against blind people because many use assistance dogs which is why you often see shop signs saying ‘no dogs, except for assistance dogs’.
There is a defence to indirect discrimination under the Equality Act 2010 that is that the policy applied is a ‘proportionate means of achieving a legitimate aim.’ However, it is uncertain whether it would be possible to demonstrate a legitimate aim and proportionate means to the standard sought by the courts.
The matter has not really been settled by the court because the parties settled the matter out of court. The agent appears to have paid £2,000 compensation and admitted indirect discrimination. But no judge has made a decision on the actual law.
Unfortunately, despite the agent’s admission this case has not settled any point of law. In practice, it is much better to consider tenants on an individual basis rather than by reference to category decisions as these are always at risk of discrimination challenges. However, where blanket bans are in place against tenants on benefits care should be taken given the current climate as this case shows that they are likely to face challenges.