There are more discrimination laws on the way under the Renters’ Rights Bill
With the passing of the Renters’ Rights Bill imminent, the focus on landlords discriminating against tenants will be sharper than ever.
Since the passing of the Equality Act 2010 landlords and letting agents in the UK have been legally prohibited from discriminating against potential tenants based on the protected characteristics under the Act. This includes refusing to rent or treating someone unfairly based on factors like race, sex, disability, religion, or sexual orientation.
The Renters Rights Bill goes a step further: The Government’s Guidance for the Bill says it will “take direct action to address rental discrimination practices in the private rented sector. It will address both overt discriminatory practices, such as ‘No DSS’ adverts, and situations where landlords or letting agents use other indirect practices in order to prevent someone entering into a tenancy.”
Crucially though, landlords and agents will continue to have the final say on who they let their property, and they can carry out referencing checks to make sure tenancies are sustainable for all parties. They will be able to do this based on affordability, but not on the basis the prospective tenant has children or is in receipt of benefits.
The protections in England will be like those in Welsh and Scottish Governments’ and the Bill will extend the rental discrimination provisions to Wales and Scotland.
This law makes it unlawful for landlords and letting agents to discriminate against someone based on their protected characteristics These include:
Discrimination on some grounds does not necessarily mean you are breaking the law on discrimination. There are two major reasons why you may want to discriminate for the benefit of both you and your tenants: (1) on suitability for the property. Its pretty obvious that a disabled person permanently in a wheelchair would be unsuited to a property where there are lots of steps and stairs. Secondly (2) it would be perfectly acceptable, and in most cases advisable, for a landlord to discriminate against someone who after detailed checks obviously cannot afford the rent.
There are other situations where you would be justified in discriminating against a tenancy applicant. For example, these might include:
The discrimination legislation is not intended to force landlords into letting to the first person who answers their advertisement.
There have been several rental property-related discrimination prosecution cases over the years. One example test case was the Tyler v Paul Carr Estate Agents 2020 case.
Mr and Mrs Tyler were privately renting a property and Mr Tyler who needed care and was wheelchair bound following a car accident requested some home adjustments that would help make his home life easier, to which the landlord served a section 21 notice.
The family enquired about viewing three properties that would be suitable for Mr Tyler’s personal and family needs, but Estate Agents, Paul Carr declared it was company policy to refuse any person in receipt of housing benefits. This was even though Mr and Mrs Tyler had never defaulted on paying their rent and paid their rent on time.
The family took Paul Carr Estate Agents to court for discrimination. The discrimination claim was based on Mr Tyler’s disability, which is one of the nine protected characteristics stated in the Equality Act 2010.
Judge Mary Stacey ruled:
“There is no doubt that there was a blanket policy that no one in receipt of housing benefit would be considered for the three properties. It put the claimant and other disabled people at a particular disadvantage when compared to others.
“To be told simply, because of his benefit status, that he could not apply for three properties which were perfectly located for his children’s school, his GP and health needs, and extended family support, would be distressing.
She summed up by saying: “we make a declaration that the defendant has unlawfully indirectly discriminated against the claimant by imposing a Provision, Criteria or Practice that those in receipt of housing benefit could not apply to those three properties.”
On 8 September 2020 Mr Tyler won his case at Birmingham County Court.
Like many aspects of managing tenancies, the keys to avoiding legal claims and being on the right side of the law are (1) being aware of and following the rules to the letter, (2) having the documentary evidence to be in apposition to prove it.
In the case of discrimination there is a further principle which is vital if you are to be safe: always take every applicant through the same selection process and have the evidence to show this. For example, have a comprehensive tenancy application form, ‘phone enquiry checklist and an interview checklist so that everyone is asked the exact same questions.
Once you have the written evidence before you include these two documents, references and credit scores and your observations following viewings, you are in a better position to make an objective judgement avoiding discrimination as set out above.
Agency staff should have thorough training on discrimination laws and good practice and landlords and agents should create and maintain thorough records of all interactions with potential and current tenants. This includes all communications, and reasons for tenant selection or rejection. Detailed documentation is absolutely crucial in defending against discrimination claims.
Avoid discriminatory advertisements by being inclusive. Avoid language which discourages any particular group, for example “DSS”, families with children, male or female, age and of course race or religion. The selection process comes later, but being sensitive to the words in your ad protects you from being accused in the first place.
Generally, people take initial inquiry calls over the telephone, so this is really the first phase of your assessment and selection. You can discriminate where the property is clearly unsuited to the type of tenant, though don’t be too dogmatic if the tenant insists on a viewing. Have a telephone question checklist so that every applicant is asked the same questions, the answers to which you can record as evidence for later.
Treat every applicant the same. You must treat all prospective tenants equally during the application process and you do this by having checklists of questions and recording the answers. It’s a bit more work but well worth it. Don’t ask personal characteristics that are not relevant to the rental or the ability of applicants to meet the requirements of the tenancy.
Don’t refuse to make reasonable adjustments to a property for disabled tenants:
The Equality Act 2010 places a legal obligation on landlords to make reasonable adjustments to ensure that disabled tenants feel safe and comfortable in their rented property.
Reasonable adjustments might include adding wheelchair access, handrails to a bathroom to support someone with a mobility impairment or adding a suitable visible doorbell repeater for a deaf tenant. You are not expected to make major structural alterations.
Under the Renter’s Rights Bill you will be prevented from asking for selective pricing sometimes used to alienate people with protected characteristics. To comply with the law, you will need to stick to an advertised price and no negotiations above that price. You should make sure you set rents at fair market rates and be consistent for all tenants.
Always respond to requests for repairs in a timely manner especially if the issue is a health and safety matter. Ensure that you deliver proper maintenance and repairs with the same speed and efficiency for all tenants regardless of their situation.
As a landlord you should be creating a fair and inclusive renting operation regardless of your legal obligations. You should understand the protected characteristics set out in the Equality Act 2010 and the new obligations coming in the Renters’ Rights Bill.
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