‘No DSS’ Letting Bans Ruled Unlawful by Court

Posted on July 15th, 2020

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.

Usually the defendant agents settle out of court in similar circumstances. But 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.

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.

Article from Nearly Legal; https://nearlylegal.co.uk/2020/07/discrimination-and-no-dss/?utm_source=mailpoet&utm_medium=email&utm_campaign=new-on-nearly-legal-newsletter-total-new-posts_1

The order and reasons can be read here; http://431bj62hscf91kqmgj258yg6-wpengine.netdna-ssl.com/wp-content/uploads/2020/07/20.07.02-Redacted-Court-Order.pdf