This page is targeted at housing professionals. Our main site is at www.shelter.org.uk

Disabled people: discrimination and human rights

This content applies to England

Discrimination against disabled people in the provision of services. The relevance of the  Equality Act 2010 and the Human Rights Act 1998 to disabled people seeking assistance from a local authority, defending against possession proceedings, and applying for permission to remain in the UK on medical grounds.

Equality Act 2010

Disability is a 'protected characteristic' under the Equality Act 2010.[1] Service providers, including private landlords and social landlords, must not unlawfully discriminate against people who:

  • have a disability (or have had it in the past)
  • are associated with a disabled person (eg carers)
  • are believed to be disabled (but are not).

For more information about the Equality Act 2010 see the Equality law section.

For more about the definition of disability see the Defining disability page.

Forms of disability discrimination

It is unlawful for any service provider to treat disabled people less favourably because they are disabled (ie direct discrimination). It is equally unlawful for them to indirectly discriminate against disabled people, or treat them unfavourably because of something arising as a consequence of their disability (ie discrimination arising from disability), unless there is a clear reason to do so.

In addition a service provider must not harass a disabled person (and people perceived as such or associated with them) in relation to access to everyday services, or victimise them.

Direct discrimination

This occurs where a person is treated less favourably because s/he:[2]

  • is, or has been, disabled
  • is wrongly thought to be disabled (discrimination by perception), or
  • is associated with someone who is disabled (discrimination by association).

Direct discrimination is only capable of being justified when it is positive discrimination favouring a disabled person.

Discrimination arising from disability

This occurs where a person is treated less favourably because of something connected with her/his disability (ie not the disability itself, but something which arises in consequence of the disabled person's disability, for example, where a secure tenant with a mental health disability sublets her/his flat and lose her/his security of tenure where the reason for the subletting arises in consequence of her/his mental disability). This provision corrects the effect of the House of Lords decision in Malcolm which held that there was no unlawful discrimination if a non-disabled tenant would be treated in the same way as a disabled tenant.[3]

There is no longer a need for a comparator. The disabled person only needs to prove that s/he has been subjected to a detriment (this is a broad concept), irrespective of the treatment of others and irrespective of whether a material or tangible loss has been suffered (ie merely to deprive a person of choice is to subject her/him to a detriment). It is the thing which arises in consequence of disability which must have caused the unfavourable treatment, including anything which is the result, effect, or outcome of the disability (eg behavioural issues or the need to be accompanied by a dog).

The service provider must know, or should reasonably be expected to know, that the person is disabled. Discrimination arising from disability can only be justified (ie it is lawful discrimination) if it can be shown that the unfavourable treatment is a proportionate means of achieving a legitimate aim.

See the Disability discrimination defences page for more information on proportionality.[4]

Indirect discrimination

This occurs where a provision, criterion or practice which is apparently neutral but nonetheless puts a disabled person at a particular disadvantage compared to others with no disabilities.[5]  Indirect discrimination may be justifiable if it is a proportionate means of achieving a legitimate aim.

See the Disability discrimination defences page for more information on proportionality.

Harassment and victimisation

Harassment occurs where a disabled person (or a person associated with, or wrongly believed to be, a disabled person) is subject to unwanted conduct which has either the purpose or the effect of violating her/his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her/him.[6] The conduct can be spoken or written words, imagery or physical gestures. It is the purpose of the unwanted conduct that needs to be proved, not the actual consequences of that conduct on the disabled person.

A person is victimised where s/he is subjected to a detriment because it is believed (whether rightly or wrongfully) that s/he has done, or may do, something to assert the rights of a disabled person (eg making an allegation against someone, or bringing anti-discrimination proceedings, or giving evidence and provide information in such proceedings).[7]

There is no need to show comparative less favourable treatment and it does not matter whether the person claiming harassment or victimisation is disabled or not; s/he only needs to prove that she has suffered a detriment.

Reasonable adjustments in providing services

The Equality Act 2010 prescribes specific duties for service providers in respect of disabled people when it is clear that a rule or practice disadvantages them. A service provider has a duty to make reasonable adjustments where a provision, criterion or practice, or any physical feature of premises occupied by a disabled person, places that person at a substantial disadvantage compared with people who are not disabled.

If the adjustment requires the provision of an auxiliary aid or service, the service provider must take such reasonable steps to provide it.[8] An auxiliary aid or service is anything which provides additional support or assistance to a disabled person. Examples include:[9]

  • a special piece of equipment
  • the provision of a sign language interpreter, lip-speaker or deaf-blind communicator
  • extra staff assistance to disabled people
  • an electronic or manual note-taking service
  • induction loop or infrared broadcast system
  • videophones
  • audio-visual fire alarms
  • readers for people with visual impairments
  • assistance with guiding
  • telephone services to supplement other information.

It is not possible for service providers to justify not making adjustments that are reasonable when they relate to the enjoyment of the premises, or the use of a benefit or facility to which the tenant or occupier of the premises is entitled as a result of the letting.[10]

Enjoyment of the premises

The Court of Appeal considered the meaning of 'enjoyment of the premises' for the purpose of the provision of an auxiliary aid for a disabled person and held that the phrase had a technical meaning, in that it referred to the use and benefit of the tenancy rather than deriving pleasure from it.[11]

Avoiding a substantial disadvantage

'Avoiding a substantial disadvantage' includes a reference to:[12]

  • removing or altering physical features (including fixtures and fittings), or
  • providing a reasonable means to avoid a substantial disadvantage to the disabled person caused by such a feature.

Examples of reasonable adjustments could include:

  • providing special taps for people with manual dexterity problems
  • installing audio-visual fire alarms for people with hearing impairments
  • providing suitable signage for people with impaired vision
  • putting in a ramp at the entrance to a building which has steps.

Reasonable

What is considered a reasonable adjustment for a large organisation may be different for an individual landlord. It is about what is practical in the service provider's individual situation and what resources the provider may have. The provider will not be required to make adjustments that are unaffordable or impractical.

Further factors to be taken into account in deciding whether it is reasonable to make adjustments will be set out by regulations. Current regulations[13] prescribe that physical features do not need to be removed, or altered, if they were originally provided for the purpose of assisting disabled people to access, or to use facilities at, the premises, and they satisfy the requirements of Approved Document M: Access to and use of buildings under the Building regulations.[14]

Physical feature

This is defined as:[15]

  • a feature arising from the design or construction of a building
  • a feature of an approach to, exit from or access to a building
  • a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or
  • any other physical element or quality.

Landlord's consent to alterations and improvements

Most leases and tenancy agreements restrict the tenant/occupier's right to improve/alter residential premises. As such, the Equality Act 2010 provides for a procedure to enable disabled tenants/occupiers of premises occupied as their only or main residence to seek the landlord's consent to make a 'relevant improvement'. These provisions do not apply to Rent Act tenancies and secure tenancies, as they largely replicate existing provisions.[16] Equally, they do not apply in respect of other tenancies if the respective tenancy agreement already contains rules about how to obtain the landlord's consent.

A relevant improvement is one which, having regard to the disabled tenant/occupier's disability, it is likely to facilitate that person's enjoyment of the premises (ie disability-related improvement) and can include:[17]

  • an addition to or alteration in the fittings and fixtures
  • an addition or alteration connected with the provision of services to the premises
  • the erection of a wireless or television aerial
  • the carrying out of external decoration.

When a disabled person applies in writing for the landlord's consent, the landlord must not withhold it unreasonably, as an unreasonably withheld consent will be taken as having been given. However the landlord can impose reasonable conditions.

When the landlord refuses consent, s/he must give the tenant/occupier a written statement with the reasons why s/he has withheld the consent.

A landlord is deemed to have refused consent to an alteration if, within 42 days of the date on which the application for consent was received, s/he fails to reply or, where the consent of a superior landlord is needed, s/he fails to seek that consent within that period of time.[18]

A landlord will automatically be taken to have acted reasonably in refusing consent for the alteration of premises where there is a binding obligation on her/his part to obtain the consent of a third party, eg a superior landlord, and that consent has not been given, or has been given subject to conditions that make it reasonable for the landlord to refuse consent.[19]

Public sector equality duty

All public authorities, including local authorities and other registered providers of social housing, are subject to the public sector equality duty to have 'due regard' to the need to:

  • eliminate unlawful discrimination
  • advance equality of opportunity, and
  • foster good relations between people who share a protected characteristic and people who do not.

This allows for positive discrimination in relation to disability (see the Public sector equality duty page for more on this).

Statutory guidance and code of practice

The Guidance on the definition of disability under the Equality Act 2010 has been in force since 1 May 2011,[20] subject to transitional arrangements covering cases arising out of acts of discrimination occurring before 1 May 2011. Ffor further information on the legal definition of disability see also the page Defining disability.

The Code of Practice on Services, Public Functions and Association has replaced previous Codes and can be used in evidence in legal proceedings brought under the Equality Act 2010.[21] The Code gives in-depth practical guidance regarding less favourable treatment, grounds that constitute discrimination, and reasonable adjustments. It covers discrimination in services and public functions under Part 3 of the Act, and discrimination by associations under Part 7. It applies to private and public providers of services, those exercising public functions and membership associations.

The Code must be taken into account by courts and tribunals when it appears to be relevant to any questions arising in proceedings brought under the Act.

Equality and Human Rights Commission

The Equality and Human Rights Commission (EHRC) has statutory duties to:

  • work towards eliminating discrimination against disabled people
  • promote equal opportunities for disabled people
  • encourage good practice in the treatment of disabled people
  • advise the Government on the working of disability legislation.

It can provide specific assistance to disabled people, including assisting them to enforce their rights and arranging legal advice and mediation where appropriate. It also provides advice and information to disabled people, employers, and service providers.

Further information is available from the EHRC, or by calling the Equality Advisory and Support Service helpline.

Human Rights Act – relevant articles

The implementation of the Human Rights Act 1998 places public authorities under a duty to ensure that they comply with the European Convention on Human Rights. The following articles of the Act may be relevant and useful to disabled people:

  • the right to life (article 2): this could be used as a challenge to resource-based decisions about services that are to be provided
  • the prohibition of inhuman or degrading treatment (article 3): this is likely to have an impact on the rights of disabled people in residential homes
  • the right to liberty (article 5): this may be used as a challenge to problems such as a failure by social services to provide domiciliary care, thus forcing the disabled person to go into residential care
  • the right to respect for the home, private and family life (article 8)[22]
  • non-discriminatory practice in the enjoyment of convention rights (article 14)
  • the right to the peaceful enjoyment of possessions (article 1 of the First Protocol).[23]

Case law – article 8

The European Court of Human Rights has held that there was no breach of a service user's article 8 rights where the local authority reassessed her need for 'assistance to use the commode at night' (for which an overnight carer had been provided) to a general need for support at night, which could be met by the provision of incontinence pads and absorbent sheets instead. A local authority has a wide 'margin of appreciation' (ie a certain amount of discretion) when deciding on the best way to ensure article 8 rights are respected and meet assessed need, and may take the cost of each option into account.[24]

In another case, the High Court found that a local authority's failure to provide community care services to a severely disabled woman and her family, despite accepting a duty to do so, was a breach of the right to family life.[25] The court ordered the authority to provide suitable housing and awarded damages on the basis that the protracted delay in doing so had forced the applicant and her family to live in conditions that made any meaningful private or family life virtually impossible. However, it should be noted that the circumstances in this case were very extreme. The claimant and her family were forced to live in conditions that made it impossible for the claimant to manage her own bodily functions and meant that privacy and/or social activity were out of the question.

Case law – article 14

The House of Lords has held that it if rough sleepers are treated differently from those with homes, then this amounts to discrimination within the scope of article 14. Nonetheless, where the Government denied rough sleepers a disability premium because they were claimants 'without accommodation', this was a legitimate policy and as such the discrimination was justified and did not breach article 14.[26]

Persons subject to immigration control

A person subject to immigration control may request leave to remain in the UK based on medical grounds, relying in particular on rights under article 3 of the European Convention on Human Rights. An applicant relying on this article must show that there are substantial grounds to believe that there is a significant risk of inhuman or degrading treatment if s/he is returned to her/his country of origin. Government policy accepts the threshold at which an applicant's article 3 rights would be breached is where her/his illness has reached a critical stage and removal would:[27]

  • deprive her/him of the care currently received, and
  • mean an early death (however, if the care is available in the country of origin to allow the person to die with dignity, the threshold is not necessarily breached).

See the section Ineligible migrants for more information.

Wales

The information on this page applies only to England. Go to Shelter Cymru for information relating to Wales.

[1] s.6 and Sch.1 Equality Act 2010.

[2] s.13 Equality Act 2010.

[3] Lewisham LBC v Malcolm [2008] UKHL 43.

[4] s.15 Equality Act 2010.

[5] s.19 Equality Act 2010.

[6] s.26 Equality Act 2010.

[7] s.27 Equality Act 2010.

[8] s.20(2) and Sch.4 Equality Act 2010. 

[9] para 7.47 Equality Act 2010 Code of Practice on Services, Public Functions and Association, EHRC, 2011. 

[10] para 2(5) Sch.4 Equality Act 2010.

[11] Beedles v (1) Guinness Northern Counties Ltd (2) Equality and Human Rights Commission (Intervener) [2011] EWCA Civ 442. 

[12] s.20(9) Equality Act 2010.

[13] Equality Act 2010 (Disability) Regulations 2010 SI 2010/2128.

[14] Building Regulations 2010 SI 2010/2214.

[15] s.20(10) Equality Act 2010.

[16] see ss.81-83 Housing Act 1980, and ss.97-99 Housing Act 1985.

[17] s.190 Equality Act 2010.

[18] reg 10 Equality Act 2010 (Disability) Regulations 2010 SI 2010/2128.

[19] reg 12 Equality Act 2010 (Disability) Regulations 2010 SI 2010/2128.

[20]  Equality Act 2010 - Guidance on matters to be taken into account in determining questions relating to the definition of disability, ODI, 2011.

[21] s.2 Equality Act 2010 Codes of Practice (Services, Public Functions and Associations, Employment, and Equal Pay) Order 2011 SI 2011/857; s.2 Former Equality Commissions' Codes of Practice (Employment, Equal Pay, and Rights of Access for Disabled Persons) (Revocation) Order 2011 SI 2011/776.

[22] But note Doherty v Birmingham CC [2008] UKHL 57; Kay and others v Lambeth LBC; Leeds CC v Price and others [2006] UKHL 10.

[23] See R (on the application of RJM) v Secretary of State for Work and Pensions [2008] UKHL 63.

[24] McDonald v The United Kingdom - 4241/12 - [2014] ECHR 492 (20 May 2014).

[25] R on the application of Bernard) v Enfield LBC [2002] 5 CCLR 577.

[26] R (on the application of RJM) v Secretary of State for Work and Pensions [2008] UKHL 63.

[27] Human rights claims on medical grounds, Home Office, 11 September 2013 (as updated); N v United Kingdom 26565 [2008] ECHR 453.

Back to top