Direct and indirect discrimination in housing

Provisions prohibiting discrimination when renting or managing residential accommodation.

This content applies to England

Prohibition on discrimination by landlords and agents

Under the Equality Act 2010, a person who is letting out or managing accommodation must not unlawfully discriminate against a person on the basis of their protected characteristic.

In relation to discrimination in renting out accommodation, protected characteristic means:[1]

  • disability

  • race

  • religion or belief

  • pregnancy or maternity

  • gender

  • gender reassignment

  • sexual orientation

Age, marriage, and being in a civil partnership are also protected characteristics but are not included for discrimination in renting out a home.

The Equality Act also imposes obligations on those concerned with the provision of services to the public or to a section of the public, whether in the private, public, or voluntary sectors. This covers schemes for allocation of social housing.[2]

Forms of discrimination

The Equality Act prohibits:

  • direct discrimination[3]

  • harassment[4]

  • victimisation[5]

  • indirect discrimination[6]

Direct discrimination

Direct discrimination occurs where a person treats another person less favourably because of a protected characteristic.[7] For example, a landlord refuses to let properties to people of a certain ethnic group.

Direct discrimination is only capable of being justified in extremely limited circumstances. For example positive action towards a disabled person.[8]

Direct discrimination by perception or by association

Direct discrimination includes where someone is treated less favourably than another person because they are thought to have a protected characteristic (discrimination by perception) or because they associate with someone who has a protected characteristic (discrimination by association).

Harassment

Harassment is defined as 'unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual'.[9]

Harassment applies to all protected characteristics except for pregnancy and maternity, and marriage and civil partnership.

Victimisation

Victimisation occurs when a service provider subjects a person to a detriment because the person has carried out (or is believed to have carried out) a 'protected act'.

A protected act includes making an allegation that someone has breached the Equality Act, as well as bringing proceedings under the Act or giving evidence in proceedings.[10]

The victim does not need to have a protected characteristic in order to be protected from victimisation under the Equality Act. For example if they are supporting a person with a protected characteristic who is making a claim.

Indirect discrimination

Indirect discrimination is where a policy or practice which seems neutral actually puts a person with a protected characteristic at a particular disadvantage. For example where a local authority applies a policy to everyone but the policy puts a disabled person at a particular disadvantage compared to others with no disabilities. 

Indirect discrimination may be justifiable if it is a proportionate means of achieving a legitimate aim.

Indirect discrimination arising from disability

Discrimination arising from disability is a special form of indirect discrimination applicable to disabled people treated unfavourably because of something arising in consequence of their disability.[11] For example where possession proceedings are brought against a disabled person for nuisance and anti-social behaviour caused by their disability.

Indirect discrimination and legitimate aims

The perpetrator of indirect discrimination has a defence if they can show that their discriminatory act was a proportionate means of achieving a legitimate aim.[12]

The proportionality test applies differently depending on whether the perpetrator is a private person or a public body. In general, an action will only be proportionate if it:[13]

  • pursues a legitimate aim

  • is rationally connected to the legitimate aim

  • is a measure which is no more than is necessary to achieve the legitimate objective

For example, in most rent arrears cases, the reduction of the arrears is likely to be a legitimate aim. Similarly in nuisance cases, the curtailment of anti-social behaviour is likely to be good housing management practice and will also be a legitimate aim. Bringing possession proceedings where arrears or nuisance has happened because of a persons disability may be allowable if it is a proportionate means of achieving that aim.

Positive action

The Equality Act allows ‘positive action’ to tackle disadvantage faced by those sharing a protected characteristic, even if it has the consequence of disadvantaging those sharing a different protected characteristic.[14] Positive action can be justified where it is proportionate. Positive action is different from positive discrimination which is unlawful. The difference between the two can be difficult to define and is determined by the particular situation.

Charities

A charity will not breach its obligations under the Equality Act if it restricts any of its services to people who share a protected characteristic, such as membership of a religious community, where that is a proportionate means of achieving a legitimate aim.[15] This exception does not apply where the people who benefit from the charity's actions or policy share a protected characteristic of race.

Discrimination when letting out accommodation

A person who has the right to 'dispose of' premises must not unlawfully discriminate against any person on the basis of a protected characteristic.

This right to dispose of premises includes where a landlord lets out a property, or a tenant sublets or assigns a tenancy.[16]

Unlawful discrimination includes:[17]

  • refusing to let to someone

  • imposing different terms on which they offer to let to someone

  • treating differently a person seeking to rent a property

Where a bed and breakfast owner had a policy of refusing to let double rooms to unmarried couples, this was held to unlawfully discriminate against gay couples.[18]

Harassment and victimisation by the person with a right to dispose are also prohibited, as is discrimination, harassment or victimisation by a person whose permission is required for disposal.[19]

No DSS – refusing to let to benefits claimants

Income and employment status are not protected characteristics, so it would not usually be direct discrimination if a landlord or agent refused to let a property to a person just because they relied on welfare benefits to pay their rent.

Refusal to let to someone who claims benefits may amount to indirect discrimination if benefit claimants are more likely to have a protected characteristic.

Where indirect discrimination is a 'proportionate means of achieving a legitimate aim', then it would not be unlawful. The government's briefing Can private landlords refuse to let to housing benefit claimants? looks at some of these issues.

In a non-binding County Court case it was held that a letting agent's policy of rejecting applications from benefit claimants amounted to indirect discrimination. This was because disabled people in receipt of disability benefits were put at particular disadvantage of not being considered for private rental properties. The defendant did not seek to justify any indirect discrimination that had occurred.[20]

Right to rent immigration checks

The Immigration Act 2014 requires certain landlords and agents to check the immigration status of prospective tenants and licensees to see if they have a right to rent.[21]

A landlord who only carries out document checks on people on the basis of their colour, or ethnic or national origins, will be discriminating on grounds of race. The government has published an anti-discrimination code of practice advising landlords on how to operate checking processes that are non-discriminatory and in accordance with statutory equalities duties.

Discrimination when managing premises

Managers of premises must not discriminate on the basis of a protected characteristic against a person who occupies premises by:[22]

  • allowing or prohibiting the use by that person of any benefit or facility

  • evicting them, or taking steps for the purpose of securing the eviction of that person

  • subjecting that person to any other detriment

The term 'manager of premises' is not defined in the Equality Act but is likely to include both landlords (private and public) and their agents.

Similar provisions are made in respect of harassment and victimisation.[23]

Eviction in this context includes the entire possession process, from the serving of notice to issuing court proceedings.

See Disability discrimination defences for more information on possible defences in possession proceedings.

Legal action on discrimination

A person who has been the victim of any form of unlawful discrimination (direct and indirect discrimination, harassment and victimisation) is entitled to apply to the County Court for damages (including compensation for injured feelings), an injunction to compel compliance with the Equality Act, and any other remedy which the High Court could award on a claim for judicial review.[24]

Last updated: 23 March 2021

Footnotes

  • [1]

    s.32(1) Equality Act 2010.

  • [2]

    s.29 Equality Act 2010; R (on the application of Z) v (1) Hackney LBC (2) Agudas Israel Housing Association [2019] EWHC 139 (Admin).

  • [3]

    s.13 Equality Act 2010.

  • [4]

    s.26 Equality Act 2010.

  • [5]

    s.27 Equality Act 2010.

  • [6]

    s.19 Equality Act 2010.

  • [7]

    s.13 Equality Act 2010.

  • [8]

    s.13(3) Equality Act 2010.

  • [9]

    s.26 Equality Act 2010.

  • [10]

    s.27 Equality Act 2010.

  • [11]

    s.15 Equality Act 2010.

  • [12]

    ss.15(1)(b) and 19(2)(d) Equality Act 2010.

  • [13]

    R (on the application of Razgar) v Secretary of State for the Home Department [2004] UKHL 27.

  • [14]

    s.158 Equality Act 2010; R (on the application of Z and Another) v (1) Hackney LBC (2) Agudas Israel Housing Association [2019] EWCA Civ 1099.

  • [15]

    ss.193 and 194 Equality Act 2010; R (on the application of Z and Another) v (1) Hackney LBC (2) Agudas Israel Housing Association [2019] EWCA Civ 1099.

  • [16]

    s.38 Equality Act 2010.

  • [17]

    s.33(1) Equality Act 2010.

  • [18]

    Black and Morgan v Wilkinson [2013] EWCA Civ 820.

  • [19]

    ss.33 and 34 Equality Act 2010.

  • [20]

    Tyler v Paul Carr Estate Agents [2020] EW Misc 30 (CC).

  • [21]

    ss.20 to 37 Immigration Act 2014 as amended by ss.39 to 41 Immigration Act 2016.

  • [22]

    s.35(1) Equality Act 2010.

  • [23]

    s.35(2) and 35(3) Equality Act 2010.

  • [24]

    s.119 Equality Act 2010.