Landlords and agents need to take care when screening tenancy applicants lest they fall foul of the discrimination laws and the Immigration Acts.
Unlike the employment situation there’s been surprisingly little to-date in the way of prosecutions for discrimination in lettings, though this may change in the future especially with the extra dimension of illegal immigrant screening in the Immigration Acts.
Those involved with lettings are vulnerable to accusations of discrimination on two counts: (1) when they advertise for new tenants in newspapers, on the internet, or even in a paper shop and (2) when they screen, interview and select them.
It seems clear that the law on equality applies to landlords and agents (including live-in landlords accepting lodgers), and also tenants looking for house-share partners.
The Equality Act states that it is “unlawful for a person who has the authority to dispose of premises (e.g: by selling, letting or subletting a property) to discriminate against or victimise someone else in a number of ways including by offering the premises to them on less favourable terms, by not letting or selling the premises to them or by treating them less favourably”.
There are legal obligations on landlords and agents as service providers and employers, to take reasonable steps to ensure that people are not discriminated against directly or indirectly due to their race, colour, gender or disability. The main legislation is as follows:
- Sex Discrimination Act 1975
- Race Relations Act 1976
- Disability Discrimination Act 1995
- Equality Act 2006 and 2010.
Direct discrimination is treating a person less favourably than another on the grounds of their race, gender or disability etc. In other cases, discrimination may occur where there has been a failure to comply with a statutory duty. In relation to disability, the statutory definition has been widened somewhat to include those with certain long-term medical conditions.
Indirect discrimination involves applying a requirement or condition that, although applied equally to persons whether male or female, black or white, may be such that a considerably smaller proportion of a racial or gender group can comply with it than others, and it cannot be shown to be justifiable.
With disability issues, a similar requirement exists that landlords do not impose criteria that could be identified as unreasonable.
On the other hand using a system to assess different people’s needs and resources does not count as discrimination. For example, objectively and consistently assessing a person’s ability to pay the rent or a family’s accommodation space requirements can be justified.
The Equality and Human Rights Commission some time ago published a code of practice on racial equality in housing . This is an important code as it is a statutory code, approved by Parliament. The courts will take into account the code’s recommendations in legal cases. The code is in two main parts; the first explains what landlords need to know about discrimination; the second makes recommendations about how landlords can avoid being discriminatory.
Where a landlord is letting rooms in their own home (lodgers), the landlord may specify the sex of prospective tenants. Age discrimination is prohibited in employment but is allowed in housing. In some cases for example housing might have to be let to those over 55 in order to comply with planning requirements.
As the landlord, you are entitled to let your property to whichever applicant you prefer. But you cannot do is refuse an applicant on the grounds of the applicant’s race or ethnicity, gender, religion, sexual orientation or disability.
Landlords have been identified as “service providers” and therefore you must comply with all equality legislation. As a rule of thumb, you must be consistent in how you treat tenancy applicants and make sure that you do not treat any applicant differently because of their race or ethnicity, gender, religion, sexual orientation or disability.
For instance, it would be discriminatory to carry out a credit check on a foreign national if you do not require this of UK or European Economic Area national. On the other hand, you could request that student applicants provide a guarantor while those working applicants do not, because employment status is not a recognised ground for discrimination.
The best way landlords and agents can protect themselves against discrimination is set-up advertising, application and screening procedures which are followed consistently and result in documentary evidence that can be present if challenged. Basically, without documentary evidence a landlord or agent will not stand a chance if taken to court.
A completed tenancy application form is important for every tenancy. Follow this with relevant interview check-lists and an objective scoring system based on the issues that you can discriminate on, such as affordability and suitability for the size of the accommodation.
Back this with copies of all appropriate documents, especially now with immigration checks imminent, photo passports and other recognised immigrant status documents.