A new Equality Bill was a flagship manifesto commitment and it was finally published at the end of April. The Bill receives its second reading in the House of Commons today. While the Bill is primarily consolidating and tidying up existing law there are four important parts that may affect housing law:
- Disability discrimination in the wake of Malcolm
- Age discrimination
- Socio-economic disadvantage duty
- Extension of Public Sector Equality Duty
Taking them in the order that they appear in the Bill, clause 1 introduces a new duty on specified public authorities who must:
when making decisions of a strategic nature about how to exercise its functions, have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage.
This was first mooted in the ‘New Opportunities: Fair Chances for the Future’ White Paper earlier this year. Without much consultation it has now found its way into the Bill and, highly symbolically, it is right at the start of the Bill. It will apply to local authorities, but not to other housing providers. The explanatory notes make clear that this duty will only apply to strategic decisions, such as deciding priorities and setting objectives.
Clause 14 is the replacement for Disability related discrimination, which is now called “Discrimination arising from disability”. This follows on from Malcolm and the subsequent ODI consultation. So disability is now covered by direct discrimination, indirect discrimination and discrimination arising from disability. The new clause states that:
(1) A person (A) discriminates against a disabled person (B) if
(a) A treats B in a particular way,
(b) because of B’s disability, the treatment amounts to a detriment, and
(c) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
(3) It does not matter whether A has complied with a duty to make reasonable adjustments in relation to B.
Clause 143 extends the existing public sector equality duties to cover age, religion or belief, and sexual orientation. This will apply to named public authorities and by virtue of 143(2) and 144(5) to other bodies carrying out HRA “public functions”. Depending on the outcome of the appeal in Weaver, RSLs might be affected.
The Bill will extend protection from age discrimination to goods, facilities and services, bringing this ‘strand’ into line with the others. Clause 190 introduces the mechanism by which exemptions to this will be introduced. The Government has said that the age discrimination provisions will not come into force until there are carefully crafted exemptions in place. However, note that Part 4, which covers premises, does not include age (see clause 30). Religion/belief and sexual orientation are also exempted from the harassment provisions in respect of premises (see clauses 31(6), 32(4) and 33(4)).
The timing of the Bill is tricky. It would look likely that it would just finishing the parliamentary process in Spring next year, so if an early General Election gets called it could all end up out the window. You can, if you so desire, download the 542 pages of the Bill and its accompanying explanatory notes here.
If the Bill simplifies this area of law then it will be a good thing – it’s a shame that such an important constitutional value has been overly technocratic. It must be bewildering if you’re a Litigant in Person.
I’m particularly a fan of Clause 119 – which states that Employment Tribunals can make what the Green Paper calls ‘wider recommendations’ if, for instance, an employer has an on-going discriminatory practice.
This complements the tribunal’s dispute resolution role with a broader rubric of setting standards of best practice. This is rather like the notional direction of most administrative law – to have the bigger picture in mind – and something I rather approve of.
I agree that the new power to make recommendations, introduced by Clause 118, seems a sensible improvement. The Tories have tabled a motion to remove this bit. I can only think that this is part of their general objection to anything that remotely relates to gender pay audits.
What are your thoughts on how it could affect local lettings policies in terms of age restrictions for certain estates or areas? E.g. ‘no one under the age of 30 can apply for these particular properties’
When you look at the explanatory notes it seems to be clear that it would apply to these kinds of situations, for instance EN 127 states that Cl 31 “makes it unlawful it unlawful for a person who has the authority to dispose of premises (for example, by selling, letting or subletting a property) to discriminate against or victimise someone else in a number of ways including by offering the premises to them on less favourable terms; by not letting or selling the premises to them or by treating them less favourably, for example in relation to a council house waiting list.” But then Clause 30 explicitly excludes age as a protected characteristic in relation to premises. I haven’t found any explanation in the hundreds of pages of bumph that accompany the Bill, but that doesn’t mean that it might not be in there somewhere ;-)
What I do know is that in the GEO’s consultation on the draft EU Directive that was recently voted on by the European Parliament, the UK Government’s position is that “we are concerned that an explicit reference to housing could have adverse implications for housing providers and could have the perverse effect of limiting people’s options. We do not propose to ban age discrimination in the disposal and management of social housing as part of the Equality Bill, as we have not seen any evidence of harmful discrimination.” Elsewhere in the Consultation document reference is made to the forthcoming consultation on age and the Equality Bill and the Government’s desire to see that “different treatment on grounds of age in respect of the sale of social housing, where justified to maintain a stock of properties suitable for specified age groups” is allowed to “continue without risk of challenge”. To my mind what this, and a number of other objections to the age discrimination provisions miss completely, is that there is already the possibility of justification built into the provisions on direct age discrimination. This is unique, as objective justification is only available in relation to the other protected characteristics in relation to indirect discrimination.
The other aspect to bear in mind is the Cl 143 duty, to which LHAs will need to have due regard.
There is also a Tory party motion to include age in Part 4, which will be moved at some point during the Committee stage, which starts on 2nd June.
I have just read the draft code published today.
One of the protected characteristics is those who are pregnant. Discrimnination is listed as (amongst others):
1. treating you worse than someone else because of a protected characteristic
(direct discrimination); or
2. putting in place a rule or way of doing things that has a worse impact on
you and other people with the same protected characteristic than it would
have on people without that protected characteristic when this cannot be
justified (indirect discrimination); or
3.(if you are a disabled person) putting you at a disadvantage as a
consequence of your disability when this cannot be justified (discrimination
arising from disability) – for example, refusing to relax a ‘no dogs’ rule in a
rental agreement when the dog is an assistance dog and the refusal cannot
be justified.
Would this mean that flats/maisonettes would now have to be advertised/let to pregnant mothers (in some areas they are not), and if someone has a guide dog they would have to be considered for a vacancy even if no pets are allowed because of shared entrances?
I haven’t looked at the Code yet, but I would think so – both disability and pregnancy/maternity are included in Part IV. As far as the guide dog goes there would still be the potential to justify that.