Lets try not to break this one – HLPA and the Equality Act 2010

This may not be a universally held view, but I think we housing lawyers aren’t really very good at equality law.

We were very late to the party with the Disability Discrimination Act 1995 (the first higher court case wasn’t until 2003, with North Devon Homes v Brazier [2003] EWHC 574 (QB); [2003] HLR 59 and we didn’t get into the Court of Appeal until Manchester CC v Romano [2004] EWCA Civ 834; [2004] HLR 47). Then, of course, we broke the Act with Malcolm v Lewisham LBC [2008] UKHL 43; [2008] HLR 41). And, at least as far as I’m aware, there isn’t anything substantive on how the Equality Act 2010 plays out in our work yet either.

This seems odd to me. What are we all missing? The Housing Law Practitioners Association has its bi-monthly meeting this Wednesday (May 15, 2013) and has secured two top-notch speakers to try and help members understand how the Act can be used. We have Robert Brown, the assistant editor of the Housing Law Reports who, in his former life in the charity sector, was heavily involved in lobbying for the 2010 Act. He is joined by Sarah Steinhardt, who has been actively pushing Equality Act arguments “at the coal face” and has an extensive background in wider discrimination and equality issues.

So, come one, come all to the HLPA meeting this Wednesday, 7pm, Portland Hall,
University of Westminster, 4 Little Titchfield Street, London, W1W 7UW.

 

 

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About J

J is a barrister in London. He loves service charges and all things leasehold law related. He also likes beating rogue landlords and mortgage companies.

13 Comments

  1. I would have thought some fairly low-hanging fruit would be to claim that adverts stating “no dss” are indirectly discriminatory (and probably harassment), if “dss” includes people on disability benefits. But I’ve yet to find a housing adviser who wants to go there.

    • It isn’t harassment (course of conduct directed at an individual) which would be why no housing advisor wants to go there.

      It could only be indirect discriminatory if it particularly disadvantaged people with a protected characteristic (unless a proportionate means of achieving a legitimate aim). So, how are you going to establish the particular disadvantage to disabled people through a ‘ban’ on benefit claimants in general? (Not saying it can’t be done, given that a higher proportion of the disabled are reliant on housing benefit/LHA than of the non-disabled, but not an easy argument to evidence or to win).

      • The Equality Act introduced the new concept, for disability, of discrimination arising from the disability. If a disabled person is on benefits because of the disability, then it seems to be the only question is whether the treatment is proportionate and the burden would be on the landlord to show it is.

        Harassment under the Equality Act does not require a course of conduct – a single instance is enough. The treatment needs to have the effect of violating the person’s dignity. Personally I would find someone referring to me as ‘dss’ just as offensive as other well-known derogatory terms, but I’m not sure exactly what evidence is needed to establish a vioaltion of dignity.

        • No, that isn’t the only question. Indirect discrimination in terms of s.15 would require you to show that being on benefits arose in consequence of the prospective tenant’s disability – not necessarily straightforward – and then (S.15(2)) that the agent or LL knew or could be reasonably expected to know that the prospective tenant had the disability (as Chief notes). In your scenario, the LL/Agent has never met or encountered the disabled potential tenant.

          I didn’t realise you meant equality act harassment, because I don’t see how that would work. Harassment requires unwanted conduct ‘in relation to a protected characteristic’ that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment. Referring to someone as ‘dss’ might well be offensive, hostile, humilating or degrading, but it is not conduct ‘in relation to a protected characteristic’.

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