Earlier this month the County Court at York handed down a ruling that a 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”. This case related to the conduct of the letting agent (and not their client but the principles here will apply equally to landlords.

The case concerned a single mother of 44 years of age who, along with her two children (21 and 16 years of age respectively) were seeking to find alternative rental accommodation as their current landlord needed their current home to house a family member. The prospective tenant contacted the defendant letting agents and asked to view a particular property at Marquis Court, Sovereign Park in York. She explained to the letting agent her position as a single mother of two who worked part time and claimed some Housing Benefits. The thoroughly upfront response received from the letting agent was that they would be unable to show the prospective tenant the property as they operated (at that time but apparently no longer) a strict “No DSS” policy on their clients’ properties. It is unclear, and not strictly relevant, whether the clients of the letting agent had requested or were even aware of this ‘long established’ policy.

The prospective tenant’s response was to commence proceedings for a declaration that the policy was unlawfully indirectly discriminatory on the grounds of sex and disability contrary to sections 19 and 29 of the Equality Act 2010. The claim was also for damages, interest, and costs.

The prospective tenant succeeded in her claim and was awarded £3,500 in damages and interest and the letting agent was ordered to pay the prospective tenant’s costs (which would not have been insubstantial, both parties having used Counsel).

The issues before the Court were as above but also the particular status of the prospective tenant, a woman who was disabled as defined by s6 of the Equality Act 2010 (“EA 2010”) by reason of her Attention Deficit Hyperactivity Disorder (“ADHD”), anxiety and depression.

The EA 2010 applies to those with protected characteristics which are set out at s4 EA 2010. One of the protected characteristics is disability, defined at s6 EA 2010 as a “physical or mental impairment” which has a “substantial and long-term adverse effect” on the person’s “ability to carry out normal day-to-day activities”. Another protected characteristic is sex, defined at s11 EA 2010 as being a man or a woman.

The EA 2010 prohibits discrimination on the basis of these protected characteristics in certain situations. Discrimination may be direct or indirect. Indirect discrimination, is defined at s19 EA 2010 as:

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

Part 3 of the EA 2010 is concerned with prohibited conduct in respect of, inter alia, the provision of services and states that:

(1) A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.

The Court considered that the policy of not accepting applications from applicants who were in receipt of Housing Benefit (a “no DSS policy”) constituted a provision, criterion, or practice under s19 EA 2010.

The Court found that the Claimant has the protected characteristic of sex in that she is a woman. She also has the protected characteristic of disability in that she suffered from anxiety and depression since her late teenage years and she was also diagnosed with ADHD in 2015. Because of her disabilities, she is only able to work part time necessitating a reliance on Housing Benefits as part of her income or housing costs.

The Court considered a great deal of statistical information provided by Shelter (the full extent of which is contained here within the Judgment which can be seen here) and from which it established that the policy was specifically prejudicial to women, single parents and those suffering from a disability covered under the EA 2010.

The letting agent, in this case, accepted that they were unable to show that the policy was a proportionate means of achieving a legitimate aim pursuant to s19(2) EA 2010 and thus that question was not tested. It will be interesting to see what, if anything, would amount to a valid means of exclusion of a sector of tenant were a more pertinacious landlord to run such an argument. Our view is that any prejudice against a group (as distinct from individuals based upon individual merits) is likely to fall foul of the EA 2010.

Conclusion

It is likely that there are very few agents and landlords out there now operating any sort of prejudicial policy such as that operated so openly by the letting agent in this case (although the government in their paper dated 14 July 2020, found here, would say otherwise). However, if such policies are in operation then those operating them are at risk of similar penalties where a tenant is rejected on generic grounds.

Whilst it is correct to say that this judgment, made only at the level of the County Court, is not binding on higher courts it is hard to see why it would not have any bearing on future decisions as confirmation of a change in direction.

For any questions or further information relating to matters covered in this Legal Update, please contact Kevin Lever on 01485 897297 or at Kevin.Lever@kdllaw.com.

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