What is 'discrimination' in housing?
Contents:
The law on discrimination is part of the Equality Act 2010 which came into force in October 2010. All of the provisions on race discrimination from earlier legislation remain. This means that 'race', including colour, nationality and national or ethnic origins, is one of the 'protected characteristics' under the 2010 act. The act protects against both direct and indirect discrimination, as well as harassment and victimisation. (The others relevant to housing are sex (or gender), religion or belief, gender reassignment, pregnancy and maternity.)
The act is reinforced by the Human Rights Act 1998, which embodies the protection given by the European Convention on Human Rights. Article 14 of the convention gives protection against unjustified discrimination on an open-ended list of grounds and article 6 protection against unfair judicial procedures.
Note that where a local authority is required to treat people differently by another statute, for example when denying a housing allocation because of lack of entitlement resulting from of a person’s immigration status, it is possible that a breach of human rights may occur. As long as it has interpreted its duties correctly, the local authority is not required to remedy this: the person affected can seek a declaration of incompatibility from the courts, which requires the government to bring forward legislation to resolve the contradiction between the two pieces of legislation.
Direct discrimination
Direct discrimination occurs when a person is treated less favourably on racial grounds (including nationality) than another person would be treated in the same or similar circumstances. An example would be where a housing provider refuses to rent a home to someone on the grounds of race, ethnic or national origins. Direct race discrimination includes discrimination based on a false perception of a person’s race/nationality/ethnic or national origins: an example would be where a landlord refuses to consider an application from a British Asian woman because they think she looks 'foreign', wrongly perceiving that she is a recent migrant from India who therefore may not be allowed to stay in the UK. Direct discrimination can also be based on a person’s association with others, where race is a relevant factor.
Direct discrimination is usually unlawful, but is allowed if:
- a charity's lawful aims are to accommodate or help people of a particular race or ethnic or national origin or nationality
- a housing association wants to make provision for a specific group who have a defined housing need, such as for housing with wardens who speak a particular language or hostel accommodation for refugees who have had traumatic experiences, or people who have specific dietary or religious requirements. There must be a demonstrable need and the special provision must be 'proportionate'
- a housing provider restricts access based on nationality in accordance with a statutory requirement.
Indirect discrimination
Indirect discrimination 'occurs when a provision, criterion or practice which, on the face of it, has nothing to do with race or ethnic or national origins' is applied equally to everyone, but it:
- puts or would put people of a certain race or ethnic or national origin at a particular disadvantage when compared with others; and
- puts a person of that race or ethnic or national origin at that disadvantage; and
- cannot be shown to be a 'proportionate means of achieving a legitimate aim'.
An example of indirect discrimination might be if a housing provider only accepted people on their waiting list who were able to work without work permits (a rule which is likely disproportionately to disadvantage non-EEA citizens).
Sources of advice
The Codes of Practice on Racial Equality in Housing issued by the previous Commission for Racial Equality (CRE) are no longer in force but contain relevant examples. One is:
'It would be unlawful discrimination if providers of housing were to assume that all people from abroad or all people from a particular racial group were considered ineligible under the relevant legislation, or if they asked only people from particular racial groups to provide proof of their immigration status.'
The EHRC has also issued (non-statutory) guidance for social housing providers on complying with the Human Rights Act 1998, available here.
Since housing associations (unlike local authorities) are not legally required to refuse some people on the grounds of their immigration status, if they apply such tests only to applicants who are or are perceived to be of particular nationalities they may be discriminating unlawfully. They can apply necessary tests to ensure they get their rent paid by, for example, finding out if applicants have enough regular income to pay the rent and, if not, asking about their benefit entitlement.
It is also unlawful to instruct an employee to discriminate. A housing provider may be liable if an agent acting on its behalf commits acts of discrimination, unless it has taken all reasonable steps to prevent the agent doing so, and this includes those who make or enforce discriminatory policies or procedures, whether or not these are carried out.
The EHRC has an advice service for advisers who are helping people with discrimination issues in Scotland. It can be contacted by phone during normal office hours (0141 228 5990).
The Public Interest Law Centre has an excellent guide for non-lawyers supporting residents of asylum accommodation who need to be moved in light of actual or threatened racist attacks.
Consequences of discrimination
If discrimination has occurred, the person affected may take proceedings in the Sheriff Court against the individual and the organisation that has discriminated. If the case is won, the court orders compensation to be paid for any losses and a sum for injury to feelings. There is no upper limit on this. The compensation is payable by the individual and/or organisation that has discriminated.
Public bodies, including all local authorities, and external organisations contracted to carry out functions of public bodies, are subject to the public sector equality duty under the Equality Act 2010. This means that a public authority in carrying out any functions and an external organisation carrying out any public functions must have due regard to the need to eliminate discrimination, to advance equality of opportunity and foster good relations between people of different racial groups. If the discrimination is by a public body or a body carrying out public functions then in addition to redress for the discrimination it may be possible to apply for a judicial review regarding failure to comply with the public sector equality duty. The individual may be eligible for legal aid for such proceedings or may obtain assistance from the EHRC. The EHRC may also issue a compliance notice against the body if as a result of an assessment it is satisfied the body has failed to comply with its equality duty. If there has been pressure to discriminate, for example by issuing or enforcing discriminatory policies, the EHRC may take legal action against the offending body or person.
If there has been pressure to discriminate, for example by issuing or enforcing discriminatory policies, the EHRC may take legal action against the offending body or person. In some cases, they will offer legal representation for the case to be taken to the Sheriff Court. In others, they will offer advice about how to proceed with the case and who else may be able to help. The Equality Advisory Support Service can offer telephone advice and support to people who believe they have suffered discrimination but will not represent: they may refer to legal providers for this. Legal advice in a discrimination case from a solicitor can be provided through the Scottish Legal Aid Board. The Government Equalities Office publish a helpful leaflet about how to deal with discrimination in services, including housing.
The EHRC has a range of powers it can use to enforce the Equality Act 2010:
- It may decide, as a result of complaints or other information, to conduct a formal investigation into a company or organisation where it suspects that discrimination has occurred. If the EHRC finds that there has been discrimination it can serve an unlawful act notice requiring the discriminator to prepare an action plan for avoiding future discrimination and recommending action for that purpose. Ultimately, the EHRC can seek a court order enforceable with penal sanctions requiring the discriminator over the next five years to take specified action.
- The EHRC can also enter into an agreement with a body it thinks has committed an act of discrimination where the body undertakes to stop discriminating and to take or refrain from taking specified action and the EHRC agrees not to proceed with an investigation or serving an unlawful act notice.
- If the EHRC thinks a housing provider is likely to commit an act of discrimination it can apply to the Sheriff Court for an injunction restraining the provider from committing that act. It can also apply to the court for an order requiring a party to an agreement to comply with their undertakings.
