Implications of the Equality Act for Letting agents accepting Landlord instructions

The November/December 2010 edition of "Agreement" magazine (the official magazine of ARLA The Association of Residential Letting Agents) has a very good two page feature on the Equality Act 2010

The Don't discriminate - Know the new rules has a page on employers needing to comply with the wider resoinsibilities in the new Equality Act and this is also repeated in "The Estate Agent" (the magazine of the NAEA - National Association of Estate Agents).

This covers the main issues - Disability discrimination, discrimination by association, Perceprion discrimination, pre-emplyment health checks and Dual discrimation etc - areas covered on the jml-training website at information_Employers

The other page asks "What are the implications of the Equality Act for letting agents when accepting instructions from landlords?"

Issues covered in the article focus on popular areas that many landlords want when they let their property out - Students - Pets - People on housing benefit. According to the article, if you declined to let a property to students, "there is no possibility of anyone challenging this on the basis that this discriminates on the grounds of age.

This is because Part 4 of the Equality Act 2010 which deals with lettings does not apply to the protected characteristics of age, or marriage and civil partnership. It is therefore not unlawful to discriminate, whether directly or indirectly, on the grounds of age when you let, sell or otherwise dispose of, premises.

Pets is an area that often comes up in the lettings business. Although more and more landlords now generally accept pets, because there are a lot more people renting these days and therefore more pet owners.

The article says "refusing to let properties to people with pets is more problematic, as it could clearly adversely affect tenants who have guide dogs or assistance dogs"

" It would be unlawful not to let to a blind person because they had a guide dog, unless you could justify it. The Equality Act 2010 makes it unlawful for person A to treat a disabled person (B) unfavourably because of something that is a result of B's disability unless A can show that the treatment was justified as a proportionate means of achieving a legitimate aim."

It is suggested that if landlord does not want pets then they could say "except assistance dogs". Of course many blocks of flats will not allow pets and this fact is written into the head lease.

Tenants on Housing Benefits Many landlords do not want to accept tenants whose rent or a large part of it is paid by the local authority in the form of housing benefit. First of all if the landlord has legal expenses / rent guarantee insurance the proper reference checks cannot be properly done by the insurance company. This means they might not issue cover in the event of a claim.

Then there is the "clawback rule" If a tenant has not be entitled to the housing benefit, then the local authority can claim this back from the landlord (or letting agent if it was paid to the agent) many months after the payment had been made. Some landlords and agents suggest the payment therefore has to be made to the tenant direct. However if the tenant decided not to pay it over to the landlord and spend it on something different, the landlord does not get the rent.

The ARLA Agreement "Legal Update" page says"For a landlord to stipulate no tenants on benefit is much less straightforward. The danger here is the possibility of a challenge on the grounds of indirectly discriminating against disabled people - the assumption being that someone on benefits is more likely to have a disability than someone not on benefit.

For a claim to succeed, there would have to be statistical proof that disabled people are significantly more likely to be on benefits than people who are not disabled.

The landlord or agent would then have to demonstrate that refusing to let to benefit claimants is a proportionate means of achieving a legitimate aim. That would be virtually impossible to prove, so there could be a breach of the Equality Act"

Solicitor Richard Jones argues that in view of the furore surrounding Local Housing Allowance, the landlord might be able to justify excluding housing benefit tenants. The landlord could say that he or she does not want to get involved with all the hassle and run the risk of arrears, as LHA is paid to the tenant.

Richard Jones is a Solicitor and Partner in Bury & Walkers LLP. He is the Senior Partner at the Leeds Office.

Richard Jones has had a long and varied career and has considerable experience of most areas of the law. Richard now concentrates on residential landlord and tenant matters. Richard’s particular speciality is acting for Landlords Associations representing landlords in the private rented sector.

Richard is the Secretary of the Residential Landlords Association. This Association is one of two landlords associations representing landlords throughout England and Wales. It is based in Sale in Manchester. This work involves campaigning on behalf of landlords particularly in relation to legislative and regulatory affairs. This work includes scrutinising legislation, responding to Government consultations, appearing before Parliamentary Select Committees, as well as considerable work with various local authorities. Richard is an acknowledged expert in this field nationally.

Source of this article: ARLA Agreement Magazine - Bury & Walkers - Philip Suter FNAEA MARLA

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