We are urging all agents and landlords to consider whether they are guilty of indirect sex discrimination. It was announced on 26 February 2018 that single mother Rosie Keogh has won compensation for sex discrimination from a letting agency that refused to consider her as a tenant because she was in receipt of housing benefit. The agent informed Ms Keogh, that they would not be proceeding with her application for a property before the agent had looked into her individual circumstances.
Ms Keogh issued a claim for sex discrimination in the County Court.
Ms Keogh argued that a blanket ban on benefit claimants was indirect discrimination against women and especially single women. This is because they are more likely to be claiming housing benefit than single men. According to official figures by the Department of Work and Pensions:
60% of adults on housing benefit are women
95% of single parent housing benefit claimants are female
66% of all single person household benefit claims are made by women
52% of households claiming housing benefit are led by a single woman
(Source: BBC News DWP)
Eighteen months after Ms Keogh first began her case the agent admitted indirect discrimination on the grounds of her sex, settling out of court with £2,000 compensation. The case raises the issue of indirect discrimination under the Equality Act 2010. It is important to remember that this claim was settled out of court, so whilst it is an interesting development, this is not a precedent.
Section 4 of the Equality Act 2010 defines protected characteristics as age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
The case has highlighted that discrimination does not have to be direct but can be discrimination if it was to have an unfair effect on a group with a protected characteristic, even if it applies to everyone. There does however remain the possibility of a defence under section 19(2)(d) Equality Act 2010, that the practice is ‘a proportionate means of achieving a legitimate aim’. For example, should the landlord have a correct and fair reason to exclude housing benefit applicants from renting his property, i.e. based on mortgage agreement terms or insurance policy terms, this would be a proportionate means of achieving the legitimate aim of satisfying the terms and conditions of the policy.
In the case of Essop and others v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice  UKSC 27, the Supreme Court considered whether, in order to successfully bring a claim for indirect discrimination under the Equality Act 2010, a claimant needs to show the reason why a provision, criterion or practise puts or would put (a) the claimant; and (b) persons with whom the claimant shares a protected characteristic, at a particular disadvantage. They also considered whether it is necessary to show that a protected characteristic was the material cause of a difference in treatment.
Agents must be mindful of this case and ensure they do not operate a blanket ban policy on the exclusion of housing benefit claimants. Prospective tenants need to be treated on a case by case basis. Many landlords have no option and cannot let to a prospective tenant in receipt of housing benefit on the basis of mortgage agreement and/or insurance policy restrictions. In such a situation it may be advisable that the landlord can provide evidence of this should it be required.
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