14/07/2020

Discrimination and ‘No DSS’

As we have seen before, Shelter have been supporting discrimination claims under the Equality Act 2010 against letting agents who operate a ‘No DSS’ policy (meaning a refusal to even consider people claiming housing related benefits – who are often employed – as applicants for tenancies. The DSS ceased to exist in 2001, which suggests how longstanding this issue is). These claims all settled out of court. Now a claim has gone to judgment.

The anonymised order and reasons is here. The claimant had been a tenant for many years, with no problems and good references. She is a single mother with a disability, who was employed. She was searching for a new tenancy and contacted the defendant letting agents, only to receive an email stating that for years the agents “have had a policy of not accepting housing benefit tenants”.

The claimant, with Shelter acting, then brought the present claim for sex discrimination and disability discrimination under sections 19 and 29 Equality Act 2010 and for a declaration in the County Court.

For once the defendant agents did not settle. However, it appears that they had a change of mind, possibly on the advice of counsel, as what was apparently a case management hearing was turned into a final hearing at the request of both parties and, as the order records, terms were agreed by the parties. However, as well as ordering the agent to pay damages of £3500 and costs, the District Judge also went on to make a declaration as sought and to give reasons.

The declaration is that

The Defendant’s former policy of rejecting tenancy applications because the applicant is in receipt of Housing Benefit was unlawfully indirectly discriminatory on the grounds of sex and disability contrary to sections 19 and 29 of the Equality Act 2010.

The reasons record that:

a No DSS policy puts or would put women at a particular disadvantage. 53.1% of female single-adult households renting privately claim Housing Benefit compared to 34% of male single- adult households. When households with couples are included, 18.8% of women renting privately claim Housing Benefit compared to 12.4% of men. This means that, in the private rented sector, using whichever of the two analyses set out above, women are more than 1.5 times as likely to rely on Housing Benefit, and thus be excluded by a No DSS policy, than men.

And in relation to disability

a No DSS policy puts or would put persons who are disabled at a particular disadvantage. 44.6% of households who claim DLA or SDA claim Housing Benefit compared to 15.1% of households who do not claim DLA or SDA. This means that, in the private rented sector, disabled households are almost three times as likely to rely on Housing Benefit, and thus be excluded by a No DSS policy, than non- disabled households.

A policy of ‘No DSS’ would therefore have an increased impact on women and on people with a disability. This amounted to indirect discrimination under section 19 Equality Act 2010.

Comment

What does this mean?

Well, it is a declaration by a court that a ‘No DSS’ policy is unlawful as it is indirectly discriminatory. This is a first.

It is, we must note, a county court judgment, and so not binding on other courts. However, in the absence of a defence under s.19(2)(d) Equality Act 2010, that the discriminatory practice is “a proportionate means of achieving a legitimate aim”, it would seem likely that other courts would reach the same conclusion. No such defence was maintained in this claim (and for letting agents at least, it is hard to imagine what one might look like). I do not think it would be a defence for a letting agent to say the policy was at the request of the landlord(s).

What it means is that a blanket policy of refusing potential tenants who claim housing benefit is unlawful. What it does not mean is that potential tenants who claim housing benefit can’t be refused.

In principle, the same should apply to landlords, as well as letting agents. However, it may be that some landlords may have a s.19(2)(d) defence, for example, that their mortgage agreement has a condition of no letting to housing benefit claimants. Most of the bigger lenders have changed their policies on this, but there will still be some lenders and historic mortgages with those conditions.

What this doesn’t mean, alas, is that housing will be any more affordable. It should mean that housing benefit claimants have the opportunity to be considered for a tenancy on their own circumstances, rather than rejected straight away under a blanket policy.

Thank to Rose Arnall of Shelter for the copy of the Order and Reasons. She has been pursuing this issue for years.

 

 

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.

6 Comments

  1. Jen Oree

    Giles, It appears this judgement can have some parallel where many landlords do not accepting tenants without a guarantor [with an income of 40K].

    Reply
    • Giles Peaker

      I don’t think so. The logic as to why such a policy amounts to indirect discrimination wouldn’t apply.

      Reply
    • Martin Maloney

      I think Jen may be right. In my experience most people on DSS don’t know anyone who earns £40,000pa. So landlords and agents can achieve much the same result by swapping a blanket “no DSS” policy for a blanket “guarantor only” policy.

      Reply
      • Giles Peaker

        Any blanket policy that disproportionately had a negative effect on women or disabled people would face the same issues.

        That doesn’t mean that landlords cannot legally refuse people if they don’t meet affordability criteria. It does mean they can’t be prevented from even asking.

        Reply
  2. Ron Platt

    This subject is very close to my “heart”. I am a, now, 70 year old Housing Benefit Claimant who has been “Of No Fixed Abode” since May 2016. Why? None other excuse than “our Landlords will not rent to Housing Benefit Claimants”. My response has been “Is that despite the fact that my Housing Benefit will be paid to the Landlord directly?” My previous tenancy was from July 2001 until May 2016 with a Landlord who:
    1. Claimed to be ex-SAS in an attempt to intimidate me. Unwise considering my origin and having been a member of the Military for 8 years in that Country.
    2. Tried for a Possession Order at Central London County Court before Judge Silverman in 2002 and lost.
    3. Tried, again, for a Possession Order in 2003 at Watford County Court before Judge Rhodes and did not appear. He was given 2 months to re-apply. Did not.
    4. Told me that would “slaughter” me the day I moved out. This threat was made in the presence of Witnesses. As with 1. above I was not “quaking” in my boots/shoes/flip-flops.
    5. 4 February 2005. Tried to assault me at the threshold but backed off when he saw that to continue would result in my “defense mechanism” would activate. He phoned 999 claiming to have been stabbed and, when asked if he needed an ambulance replied “No”. Come the Court Hearing at St. Albans Magistrates Court the Usher and Senior Magistrate were unable to contact him. I argued against a dismissal, wanting him in Court. I lost.
    6. At Watford County Court. His Statement claimed that I had stabbed him. I could not be bothered. He got his eviction order although according to Land Registry he had passed ownership to his Daughter.

    For ignoramuses such as I, can there be explanations attached to various quotes, such as “Section 21”, “Ground 8”, etcetera, please. Interesting website.

    Reply
    • Giles Peaker

      We write for housing lawyers and advisors, principally. We can’t explain the basics in every post.

      Reply

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