Following a report on the BBC earlier in the year, Shelter has started a new campaign to highlight the issue of landlords and agent refusing tenants on benefits a blanket basis. They are also intending to commence legal challenges in specific cases. However, discrimination in legal terms is much more complex than this. I want to say now that I am commenting here solely from a legal perspective and this article in no way advocates discrimination against anyone!

The argument in the case reported by the BBC was that to refuse all tenants with benefits without even considering their circumstances was an example of indirect discrimination. This type of discrimination occurs when I have a policy I apply equally but that policy is particularly discriminatory against a group with a protected characteristic. A classic example would be a prohibition in a shop on all dogs. This would arguably impact unfairly against blind and other disabled people who use assistance dogs. This is why you commonly see signs on shop doors that prohibit dogs qualified with the statement “except disabled assistance dogs”. In relation to DSS, the BBC’s report focused on the argument being that benefits are more commonly claimed by single women than single men and so a blanket ban on all tenants on benefits impacted more substantially on women than men and so was indirect discrimination against women.

However, this was an example of slight over-reaction by the BBC to the situation. That case was settled out of court and was in fact only in a county court anyway. So, to date, no court has made any ruling that it is discrimination to refuse tenants on benefits and even if this court had made that decision it would merely be a county court decision and so could be freely ignored by every other judge, even in the county courts. However, it was inevitable that this report would bring the issue into sharper focus and the Shelter campaign is now doing so.

The first question to consider is whether or not this is actually indirect discrimination at all. It may be if the property is for a single person because men and women are not equally likely to be on benefits. However, while single women are far ahead of single men in terms of percentage of claimants they are not far ahead of couples and single men. If a one bed property is equally suitable for an individual and a couple it may be hard to argue that the correct comparator when deciding whether there is discrimination against women is men, it may be more appropriate to compare them with everyone else, in which case the figures are much closer together.

Even if we do accept that there is discrimination against women it may be the case that the discriminatory practice of refusing tenants on benefits is (legally-speaking) justified. This is a general defence to claims of indirect discrimination. So why do landlords refuse benefit tenants? Well there are two common reasons. The first is that tenants on benefits are paid four-weekly in arrears. This contrasts with the normal residential rental practice of asking for rent monthly in advance. So, a tenant on benefits is likely to be in arrears for most of the time. The other reason commonly given is that if the tenant is asked to leave, for whatever reason, a tenant on benefits is likely to approach the local authority for assistance and will then be told by them to remain in the property until a court order is obtained and a bailiff appointment made, thereby increasing landlord cost.

The second of the two reasons is not terribly strong as there is little evidence that this happens more with tenants on benefits and is in any event nothing more than the exercise of the tenants’ legal rights. In addition, this will probably change once the Homelessness Reduction Act comes fully into force. A better argument may be the financial one. This is essentially that the cost that a landlord incurs in housing a tenant on benefits as a result of the rent arrears position is one which a landlord should be allowed to freely opt-out of. Whether a court would be prepared to accept that is uncertain.

This is not the only possible type of benefit related discrimination. For example, it might be possible to make an argument on behalf of a disabled person on disability benefit or on behalf of a pregnant woman on benefit due to maternity. These cases would be much harder to justify in legal terms. Pregnancy for example is a form of discrimination which cannot be objectively justified in law at all and so the arguments above would be unlikely to work. Therefore, landlords and agents should not be making blanket statements that they will not accept tenants on benefits and should consider the issue more carefully on a case-by-case basis and then decide based on the nature of the applicants who they wish to accept.