Premises, premises

In this first article, we focus on the general provisions; in the second we turn to the duty to make reasonable adjustments which we will examine in some detail because the provisions are relatively complex. The public sector equality duties which apply to local housing associations when exercising public functions fall outside the scope of these articles. The premises provisions are to be found in part 4 of the Act.

Scope

Part 4 relates to the sale, leasing and management of all premises, whether residential or commercial, and whether in the public or private sector. It is similar to the existing legislation, save in respect of the provisions in relation to disability.

It does not apply where the prohibited conduct is covered by other parts of the Act, whether parts 3 (services and public functions), 5 (employment) or 6 (education). Neither does it apply to the provision of accommodation if made for short stays by individuals who live elsewhere. Thus the case of Hall and Preddy v Bull (HHJ Rutherford, Bristol CC, 18 January 2011), in which a gay couple were awarded damages having been refused bed and breakfast accommodation in Cornwall, would now be brought under part 3 of the Act.

In May, the Equality and Human Rights Commission (EHRC) published Human rights at home: guidance for social housing providers. While the Human Rights Act 1998 (HRA) is outside the scope of these articles, this non-statutory guidance provides useful examples of the steps that landlords should take to secure equality of treatment having particular regard to articles 6, 8 and 14 ECHR.

Race

The Race Relations Act 1965 was enacted to deal with the overt discrimination which existed against the new arrivals from the West Indies, India and Pakistan. Housing figured highly among their priorities and was consequently high among complaints of discriminatory treatment. Most immigrants at this time sought accommodation from the private sector. Cards in shop windows offering accommodation to 'Europeans only' or 'no coloureds' or 'no Irish' were common. Small premises with a resident landlord were exempted and this remains the position.

There are still examples of such overt direct discrimination. In Yousaf v Robb Estate Agency and others (Paisley County Court, 1997) (example used in the CRE Code 2006) damages of £2,000 were awarded against an estate agency when it refused to arrange a property viewing. The applicant was suspicious of the reason given by the estate agency for refusing an appointment and arranged for four other people (two of Asian origin and two of a white Scottish background) to ask for appointments to see the property. The two Asians were refused appointments and the two white Scots were given appointments.

On the other hand, in Rose v Bouchet [1999] Sh Ct, the owner of a guest house refused to provide a blind man with accommodation because he was concerned that the external access to the premises would be unsafe. The court found that this refusal was justified under the Disability Discrimination Act 1995.

In the 1980s, the Commission for Racial Equality was particularly concerned about discriminatory practices in the allocation of housing accommodation by local housing authorities and conducted a number of formal investigations. However, the only public law challenge by housing applicants failed to establish either direct or indirect racial discrimination or a breach of the general equality duty (see R v Tower Hamlets LBC, ex p Mohib Ali & Others [1993] 25 HLR 218, DC). The manner in which Tower Hamlets operated its amended lettings criteria which had a disparate impact upon Asian housing applicants was found to demonstrate unfairness and irrationality requiring the intervention of the court.

Statutory guidance issued by the Department of Communities and Local Government must ensure that their allocation schemes are compatible with the requirements of the equality legislation (see Fair and Flexible: statutory guidance of on social housing allocations for Local Authorities in England, December 2009). They are strongly recommended to carry out equality impact assessments, monitor lettings outcomes and ensure that this information is made regularly and publicly available.

Gender and relationships

Gender discrimination has not been a significant issue in housing law. However, the emphasis on equality has led social landlords to grant joint tenancies to applicants and this is now the recommended practice (see paragraph 4.28 of the Allocation of Accommodation: Code of guidance for local housing authorities, 2002). Parliament's failure to modify the common law rule whereby one joint tenant may unilaterally determine the tenancy by the service of a notice to quit has been a cause for litigation, particularly in cases of relationship breakdown (see Harrow LBC v Qazi [2004] 1 AC 983 and McCann v UK 47 EHRR 913).

Social landlords need rational policies to deal with relationship breakdowns if they are to avoid challenges under article 8, now that the domestic law has been clarified by the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45.

Housing law evolved to secure some equal treatment for same-sex couples in advance of the Equality Act (Sexual Orientation) Regulations 2007 (see Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 and Ghaidan v Godin-Mendoza [2004] 2 AC 557 which turned on the additional interpretative tool provided by section 3 of the HRA). While the primary legislation has now been amended by the Civil Partnership Act 2004, to secure equality of treatment between married couples and civil partners landlords need to ensure that their policies have been similarly aligned, particularly in respect of couples who have declined to formalise their relationship in law.

Disability

Parliament and the courts have faced greater difficulties in seeking to secure equality of treatment and human dignity for disabled people. The fundamental principle underlying disability discrimination law has not merely been that disabled people should be treated in the same way as other people without their disability, but rather to secure that they are treated differently in order that they can play as full a part as possible in society whatever their disability.

The premises provisions were introduced to the Disability Discrimination Act 1995 as an amendment as the bill was passing through parliament. There was limited debate as to how the provisions would operate in an area as complex as housing law. Further, the DRC Premises, Services and Public Authority Code was written from the perspective of discrimination, rather than housing law. Some of the examples lack a proper understanding of housing law (see Manchester CC v Romano (DRC intervening) [2005] 1 WLR 2775 per Brooke LJ).

These difficulties were highlighted in a series of cases where tenants with disabilities sought to rely upon DDA95 as a defence in possession proceedings (see North Devon Homes Ltd v Brazier (2003) HLR 905; Manchester CC v Romano; Wright v Croydon LBC [2007] EWHC 3465 and Floyd v S (EHRC intervening) [2008] 1 WLR 1274).

The wide definition of disability-related discrimination provided by the Court of Appeal in the employment context in Clark v Novocold Ltd [1999] ICR 951, coupled with the limited defence of justification provided in premises provisions led to the realisation that a landlord might not be able to justify an eviction based on rent arrears, where there was a causal link between the arrears and the tenant's disability.

This conundrum was resolved by the House of Lords in Lewisham LBC v Malcolm in which the lords revisited the definition of disability-related discrimination largely restricting its scope to direct discrimination. In a strong dissenting judgment, Baroness Hale argued that not only did Clark make sense, but it reflected the clear intention of parliament.

The effect of this decision is now reversed by the new definition of discrimination arising from disability (section 15). If a causal connection is established between the unfavourable treatment and disability, the onus is now on the landlord to show that the treatment is a proportionate means of achieving a legitimate end. The language used mirrors that in article 8 and demonstrates the extent to which the ECtHR and domestic law are becoming aligned, with 'proportionality' replacing the traditional concept of 'reasonableness'.

While article 8 will only afford a defence in limited circumstances, section 15 creates a real challenge for all landlords seeking to evict a disabled tenant, or households including a disabled person. In seeking to justify an eviction, the landlord will need to show that eviction is a proportionate response having regard to the tenant's conduct. This may require the landlord to demonstrate what steps they have taken short of eviction to manage the problem, including what reasonable adjustments have been made. The duty to make such adjustments will be discussed in our next article.