Case brief: Successful challenge of the ‘no DSS’ policy
Posted on 14/10/20
In this case brief, Rose Arnall provides an overview of the recent successful legal challenges of the discriminatory ‘no DSS’ policy. Rose is a solicitor and a member of the Strategic Litigation Team at Shelter, which supported their clients in bringing the challenges.
DSS discrimination occurs when landlords and letting agents reject an application from a potential tenant because they are in receipt of benefits, rather than taking the time to consider their individual circumstances and whether they could afford the property. ‘DSS’ means Department of Social Security, the previous name of the Department for Work and Pensions.
Sometimes, the agent or landlord publicly advertises ‘no DSS’ as a fixed policy. On other occasions, the applicant only discovers it when they enquire about a property and are rebuffed on the grounds that they receive benefits.
In recent years, a number of cases have been brought challenging the lawfulness of ‘no DSS’ policies. The argument made by claimants and supported by Shelter’s research is that such policies are unlawfully indirectly discriminatory against women and disabled people, contrary to the Equality Act 2010.
The research showed that women and disabled people are significantly more likely than men and non-disabled people to claim housing benefit. This indicates that ‘no DSS’ policies breach section 19 of the Equality Act 2010 by unlawfully putting women and disabled people ‘at a particular disadvantage’ compared to men and non-disabled people.
The first challenge was brought by Rosie Keogh in 2016. Rosie’s case settled when the agents admitted unlawful discrimination, paid £2000 compensation and her legal costs. Further challenges followed.
In Emma’s case, the agent had refused to rent a property to her on the basis of instructions from a landlord who said their mortgage lender would not accept benefit claimants as tenants. The agent never checked the mortgage agreement and had no evidence that the contract was so restrictive.
Amanda was told by the letting agent that the landlord could not rent to benefit claimants because of their insurance policy. This turned out not to be true.
Hayley was told that the landlord did not want to let to anyone in receipt of housing benefit or to anyone who was a part-time worker.
Jelena was refused a property on the basis of instructions from a landlord who did not want to let to anyone in receipt of housing benefit.
All these cases were settled when the agents admitted unlawful discrimination, apologised, committed to retraining staff and amending their policy and practices, and paid compensation and legal costs.
Jane is a disabled single mother of two children. She had to leave her rented home because the landlord wanted the property back for a family member to live in. In October 2018, she saw an advert for a suitable property to rent and contacted the letting agent to express her interest. She was told that they did not accept housing benefit. When she pressed them further, she was told there had been a long-standing policy in place not to accept tenants in receipt of housing benefit.
Supported by Shelter, Jane brought proceedings in the County Court seeking damages and a declaration that the agent’s policy was unlawful. After months of litigation, the agent abandoned the policy, indicated that they would pay damages and agreed to a declaration being made, as to whether their policy was lawful. An application by consent was duly made to the Court.
The case was heard by District Judge Marks who, having considered the Statement of Reasons agreed between the parties, granted a declaration that:
The Defendant’s former policy of rejecting tenancy applications because the applicant is in receipt of Housing Benefit was unlawfully indirectly discriminatory on the grounds of sex and disability contrary to sections 19 and 29 of the Equality Act 2010.
Because the declaration was made in the County Court, it relates specifically to one defendant’s policy and does not have the force of precedent. Nevertheless, it is an important step forward in the campaign against DSS discrimination. It was the first time that a ‘no DSS’ policy had been declared unlawful by a Court and the strongest indication so far that such practices contravene the Equality Act 2010.
Stephen is a disabled father whose family lost their home in February 2018. They had asked the landlord to make some disability adaptations to their home, and the landlord had responded by serving the family with a Section 21 ‘no fault’ eviction notice. Looking for a suitable new property to rent, Stephen was told by an estate agent that it was “company policy” to refuse to rent to people who receive housing benefit.
Supported by Shelter, Stephen was able to successfully prove that the agent’s policy was unlawful and in breach of the Equality Act. Her Honour Judge Mary Stacey ruled that:
There is no doubt that there was a blanket policy that no one in receipt of housing benefit would be considered for the three properties. It put the claimant and other disabled people at a particular disadvantage when compared to others.
She went on to say:
…we make a declaration that the defendant has unlawfully indirectly discriminated against the claimant by imposing a PCP [Provision, Criteria or Practice] that those in receipt of housing benefit could not apply to those three properties.
This case is a further significant step forward in the campaign against DSS discrimination. Whereas the decision in Jane's case was by concession, in Stephen's case there was a fully contested trial. Additionally, this is a decision made by a Circuit Judge with considerable knowledge in the area of discrimination, so is of generally persuasive value, albeit not binding.
These cases certainly stand as a warning to landlords and letting agents that they risk legal action if they continue to operate blanket bans against applicants in receipt of benefits.