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…