Lawful and Unlawful Discrimination

it is perfectly acceptable, and indeed in most cases advisable, for a landlord to discriminate against someone who clearly cannot afford the rent for the property. In that context 'discrimination' is another way of saying 'choose'."

Discrimination

Introduction

The discrimination laws apply to landlords when choosing and dealing with tenants in their properties and so this is something you need to know about.

However it is only unlawful dicrimination which is forbidden. Some types of discrimination are acceptable, indeed advisable.

This article gives a quick overview of what is and what is not unlawful

When it is unlawful to discriminate

According to the gov.uk website here (and they should know), it is unlawful to discriminate against anyone for any of the following reasons:

  • age
  • being or becoming a transsexual person
  • being married or in a civil partnership
  • being pregnant or on maternity leave
  • disability
  • race including colour, nationality, ethnic or national origin
  • religion, belief or lack of religion/belief
  • sex
  • sexual orientation

These are called ‘protected characteristics’ – and buying and renting property is one area where the law protects you from discrimination.

So if you are a landlord you cannot refuse to rent a property to someone simply because:

  • They are over 70
  • They are black
  • They are Muslim (or Christian)
  • They are men, or because
  • They have mental health issues

If you do, you will be breaking the law.

However, this does not mean that if someone who is disabled, gay, etc applies to rent your property you have GOT to rent to them.

  • It is illegal if you refuse to rent to them because (for example) they are gay.
  • However, it is not illegal to refuse to rent to them because you don’t think they can afford the rent.

When you should discriminate

Discrimination does not necessarily mean unlawful discrimination. So, for example, it is perfectly acceptable, and indeed in most cases advisable, for a landlord to discriminate against someone who clearly cannot afford the rent for the property.  In that context ‘discrimination’ is another way of saying ‘choose’.

Here are some situations where ‘discrimination’ (or not choosing someone) may be a good idea:

  • People who you believe will not look after the property properly
  • People who have numerous county court judgements registered against them
  • People whose former landlord gives a bad reference for them, or even
  • People who you feel uneasy about – your subconscious may be warning you that this person is going to be a bad tenant.

The anti-discrimination legislation is not there to force you to rent your property to someone you consider will be a bad tenant.

When you can discriminate

In fact, you can ‘discriminate’ against anyone, for whatever you like, so long as it is not in respect of one of the ‘protected characteristics’.

So it is perfectly legal (if perhaps not very nice) to ‘discriminate’ against people because:

  • They have red hair
  • You don’t like them
  • They ride a motor bike
  • They are plumbers, or
  • They have too many tattoos.

Tenants on benefit

By ‘benefit’ I mean a tenant who is in receipt of any kind of state support such as housing benefit, or Universal Credit.

The situation is interesting here. Being on benefit is not in itself a protected characteristic. And landlords often justify discriminating against people on benefit because they think they will not be able to pay rent or will be unreliable. Or even because they do not want to deal with the Council.

However in this case single mother Rosie Keogh brought a claim in the County Court against letting agents who refused to consider her for a property. The basis of her claim was that this was sex discrimination, as blanket bans on benefit claimants indirectly discriminated against women, especially single women. Official figures showing that womean are proportionately more likely to be claiming housing benefit than single men.

The agents settled so the case never came to trial. However it was generally felt at the time that the case was well founded and she would have had a good chance of success.

So in view of this, a blanket ban on benefit claimants is inadvisable., and you should consider their applications and not dismiss them out of hand.

However this does not mean, when letting a property that you cannot choose someone with a job over someone on benefit if you consider that they would be a better tenant or more likley to be able to pay the rent.

Proving discrimination

If someone is aggrieved about being refused a property and suspects that this is down to unlawful discrimination by the landlord – there are always going to be problems proving this – unless the landlord admits it.

So for example

  • If Landlord X tells Tenant Y to push off as he’s not having any ‘nancy boys’ in his property – Tenant Y may have a case.
  • However, if Landlord X just tells him to push off, without using any other offensive language, and rents the property to someone who has a higher paying job – Tenant Y won’t have a case. As the landlord’s decision to choose the other tenant is perfectly reasonable.

Landlords need to be careful therefore about telling tenants what their reasons for refusal are.

You also need to be careful about selecting people for reasons unconnected with their ability to pay for or look after the property – as you may be discriminating unlawfully without realising it.

For example, if you have a policy of not renting to people with certain jobs – this may be unlawful discrimination if those jobs are invariably done by people of a particular race or religion.

Positive Discrimination

Note by the way that positive discrimination is allowed, if people with a protected characteristic:

  • are at a disadvantage, or
  • have particular needs

Which is why it is all right to have accommodation specially adapted and reserved, for example, for disabled people in wheelchairs or the elderly.

Conclusion

In short, it’s all about your reason for refusal to rent. If your reason is connected to a protected characteristic – you are in the wrong.

Apart from this, you can choose who you want to live in your property.

I have not discussed ‘right to rent’ checks in this article but note that landlords are all bound by the Code of Practice issued by the Government on avoiding unlawful discrimination when conducting right to rent checks in the Private Residential Sector.

When it comes down to it, you need to make your decision on who to rent to based on whether you think they will be a good tennat or not. If your decision is reasonable and is not based on something connected to any protected characteristics, you should be all right.

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