‘No DSS’ and discrimination

The BBC ran a new report today on a case in Birmingham. The headline – “Landlords who say ‘no DSS’ breaking equality laws” – was, as we shall see, somewhat misleading, but the report did indeed cover a discrimination claim against a letting agency who had refused to consider a woman and single mother as an applicant for tenancies in the Kings Heath area of Birmingham because part of the prospective rent would be paid by housing benefit.

Ms Keogh brought a claim against the agents, Nicholas George, claiming indirect sex discrimination, on the basis that women were more likely to work part time and have recourse to housing benefit, such that a blanket ban on ‘DSS’ (aka housing benefit/LHA claimants) affected women disproportionately.

We have wondered here, on and off and across comments, about the possibility of discrimination claims on such a ‘no DSS’ policy, particularly in regard to disability discrimination. If anything, the recent Supreme Court judgment on indirect discrimination by a provision, criterion or practice (PCP) in Essop and others (Appellants) v Home Office (UK Border Agency) (Respondent) Naeem (Appellant) v Secretary of State for Justice (Respondent) (2017) UKSC 27 might have made such a claim more straightforward to bring.

However, despite the first version of the BBC article asserting that ‘the principle has been settled’ (the article has since been changed), this claim was settled before judgment, with the letting agents paying £2,000 compensation.

So while an interesting development, this is not a precedent.

While claims of indirect discrimination in such a blanket ban may be well founded and are clearly arguable, there remains the possibility of a defence under s.19(2)(d) Equality Act 2010, that the practice is “a proportionate means of achieving a legitimate aim”. Unless or until that defence is tested in court, the issue will remain unclear.

That said, this is a clear demonstration that something that a number of people have been discussing as a hypothetical possibility for some time is indeed a viable potential claim. And it is a reminder (if one were needed after Fergus Wilson met the EHRC) to landlords and agents that any simple ‘blanket letting policy’ actually needs to be considered very carefully.

(It is also worth mentioning that the Bar Pro Bono Unit arranged for some pro bono advice and representation by Robert Brown of Arden Chambers. These things are important.)

Incidentally, isn’t it interesting how ‘no DSS’ has lingered on. I think it says something about the average age of landlords (the DSS ceased to exist in 2001), but it also suggests something about resistance to change…

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, Housing law - All and tagged , , .

10 Comments

  1. I wonder if ‘No DSS’ is meant to cover the prospect of such Housing Benefit claimants migrating onto U.C with all the delays and bureaucracy that entails and as such, its based on an economic decision, as opposed to a prejudice.

    • I don’t think anyone would try to argue that Universal Credit isn’t a horror show. But that is to miss the point about indirect discrimination. It is not a decision based on the protected characteristic – that is direct discrimination – but a decision/policy/practice which adversely and disproportionately affects people with the protected characteristic. So it isn’t about ‘prejudice’ per se.

      As I mentioned, the question of whether such a rule would be a proportionate means to a legitimate aim (a defence to indirect discrimination) has not been tested. Obviously the economics involved would form the basis of any such defence.

    • Landlords certainly claim uncertainty over payment as one of their reasons to reject benefit claimants, though whether this is reasonable is unclear. Are government payments really more unreliable than employers?

    • The protected characteristics (age, disability, gender, pregnancy and maternity, race, religion, sex and sexual orientation) are characteristics that either can’t be changed – they’re determined by accident of birth, or it would not only be unreasonable, but downright immoral or objectionable to expect a person to change (for example, you wouldn’t ask a pregnant woman to get an abortion).

      However, anyone of working age can to some extent choose what they do for a living, at least in a relatively favourable economic climate. Moreover, in our society, the Disability Discrimination Act offers protection against employment discrimination based on the protected characteristics unless the discrimination is reasonable in the circumstances . I therefore do not recognise the term “classism” (or more accurately perhaps “incomeism”) and certainly wouldn’t be happy to see it become a legally protected characteristic. We live in a meritocratic capitalist society and while this is far from perfect, the alternatives are much worse.

      As a landlord, I find the term “no DSS” offensive, archaic and inaccurate (and a prospective tenant could always apply anyway and say they are not “DSS” because there is no such government department or benefit :-) ) but I have allowed it to be used against my property ads in the past and I do very much recognise why it is used in general.

      Landlords have to be allowed to mitigate their financial risks just like any other business, particularly as most private landlords are simply individuals on average incomes. However, I agree that instead of doing this by barring all applicants on housing benefit, a minimum income level (whatever the source) should be used and the applicant assessed as an individual, including proper thorough references which includes previous landlords and bank statements.

  2. How unusual the BBC misled given no ruling was made … just as interesting as why No DSS lingers …

    To move to far more important issues a report issued in September 2017 by University of Sheffield and commissioned by Chartered Institute of Housing reported that council and housing association landlords were refusing to accommodate homeless nominations due to “affordability” and in ever increasing numbers and citing they don’t get enough in ‘welfare.’ In simple terms NO DSS. (see here https://speyejoe2.wordpress.com/2017/10/24/social-housing-is-unaffordable/)

    How about Severn Vale Housing Association (former Tewkesbury council housing) who in 2016 in response to a stated introduction of the shared accommodation rate for social housing banned allocation to all those under 36? (https://speye.wordpress.com/2016/04/20/severn-vale-housing-bans-anyone-under-36-in-new-allocations-policy/)

    Interesting as both concern social housing – you know the ‘good guys’ not those ‘nasty’ private landlords who operate No DSS and all those other evil practices, blah, blah, blah) and in the case of Severn Vale HA we see the protected characteristic of age applying loud and clear.

    Still why the House of Commons only publish papers on can the PRIVATE landlord say No DSS and not even think to include the actual examples of social landlords doing this and while Shelter. JRF and all the usual suspects of the housing poverty and homeless commentariat also fail to see the nefarious practices of social landlords some of which are highly dubious legally as the above reveals ….

    • Age is not a protected characteristic for housing.

      But no reason why a similar argument wouldn’t apply to ‘blanket’ housing association letting restrictions, if a disproportionate effect on one of the protected characteristics could be established.

  3. Pingback: Law Banning Benefit Tenants Remains Unclear for Landlords | GRL Landlord Association

  4. The “No DSS” thing has always bugged me, not least because while I worked for the local authority, the majority of my best tenants were in receipt of benefits. Don’t get me wrong, there were some awful tenants on benefits as well, but the vast majority of the 1,600 tenancies I managed were exemplary tenants.

    I understand private landlords wanting to protect their investments. I understand how caps on LHA limit rental income. I understand the uncertainty that the benefit system creates. My issue is that all of us are subject to the whims of fate. What’s to say a person who is employed when they sign a fixed term tenancy will still be employed a month or two down the line? It happened to me within 6 months of taking up a 12 month tenancy. No DSS is a totally arbitrary and counter-productive filter.

    It was an interesting approach from Ms Keogh and it’s somewhat of a shame it was settled before any ruling was made. It would certainly be interesting to see more actions taken on grounds of disability discrimination as some of my service users could certainly benefit from blanket “No DSS” style bans being stopped.

  5. I have been a landlord for many years. I have only once had a tenant who relied on benefits. In her case she lost her job. What I found was that once she was on benefits I did not receive all of the rent. The benefit was paid directly to her but she did not pass it on in full as she had other creditors. If the housing benefit had been paid directly to me then I would have had no problem with the fact that she was on benefits.

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