Please Note: This Article is 5 years old. This increases the likelihood that some or all of it's content is now outdated.

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.

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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 http://goo.gl/7h67Z6 . 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. Followed this with relevant interview check-lists and an objective scoring system based on the issues you can discriminate on.

Back this with copies of all appropriate documents, especially now with immigration checks imminent, photo passports and other recognised immigrant status documents.

Please Note: This Article is 5 years old. This increases the likelihood that some or all of it's content is now outdated.
©LandlordZONE® – legal content applies primarily to England and is not a definitive statement of the law, always seek professional advice.

5 COMMENTS

  1. OK, so the big question not answered, which seemed to be the whole point of the article, is : Can a landlord refuse to let a property if he cannot be 100% certain he cannot be prosecuted for failing to meet unknown (but widely expected to be unreasonable) standards in assessing their legality to be in the UK ? Put another way, if I can see someone is a UK citizen then no problem, otherwise, well it\’s too much of a risk as things look right now.

  2. I imagine it would be discriminatory of me to assume an immigrant was more likely to abscond (owing rent) and leave the country than a UK national?

  3. I am not the authority on this, so you will need to read the documentation indicated when this is all passed into law, and even then it will be the courts that decide.
    My view is that if you have reasonable doubts and you can justify this – you take copies of documents presented and show documentary evidence of the process you went though, then in the unlikely event of you being pursed for discrimination you should be in the clear.
    What the Home office are saying if I remember correctly is that if you want clarification there will be an e-mail enquiry system available and if you don\’t receive a reply within 24 hours you will be free to let regardless, for 12 months.
    Also, I would suggest that if these checks are available commercially through credit checking agencies, then there should be no need for uncertainty.
    I think it would be discriminatory to assume that foreign nationals would be a greater risk than others as you would be treating the minority group differently. However, if you can show, backed by documentary evidence, that an individual, given all your checks, is a greater risk, then you would be in the clear to reject them.

  4. I had a foreign national view my family home as a potential lodger, he brought a friend round and part way through was chatting to him in a way that made me feel uncomfortable, in his home language, I live here with my 2 children and decided that he was not suitable because I did not feel comfortable. After reading this it would suggest that I would be classed as being discriminatory, if so could I be taken to court because I would feel uncomfortable renting to them.
    He wanted the room and became abusive when I refused to allow him to have it.
    Should I be made to put my family at risk to comply with these rules, I would rather not rent at all.

  5. Stephanie, you are so totally right. I am a female landlady, single mum with child. Although I now rent out several properties I started 15 years ago with one single lodger, then two lodgers in my home, in the bedroom next to my then very young son. I absolutely HATE these kind of laws. In my own home I would totally expect to only accept someone I am comfortable accepting in as part of my family, and in my other rental properties I likewise need to have a comfortable feeling that whoever I rent to is reliable, can meet affordability criteria, appears competent and willing enough to keep a premises from falling down around their ears without informing me of problems. Initial interviews are of paramount importance, as are all background checks if landlord chooses to do them. I hate to say, but I have inadvertently rented to foreign nationals with false passports, but at the time of signing contracts it\’s virtually impossible for a normal landlord to know if passports are real. In all such cases the bearers of these false passports TOLD me after some months (odd perhaps) and amazingly all turned out reliable as tenants. No, I didn\’t shop anyone to immigration, though friends told me I should. But of course I couldn\’t extend tenancies with that knowledge. Primarily Ukrainians posing as Lithuanians, Brazilians posing as Portugese, and Nigerians with simply multiple (Nigerian) identities. Nearly all claiming benefits with these passports, and with largish families, children attending our schools. Yes, it\’s horrible, wrong, makes you angry, but absolutely endemic in north London at least! Not sure HOW I will know the false passports in future though. Simon above is right: only take white people with obviously British accents and you should be safe against prosecution if you\’ve interviewed others too…..

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