Discrimination by letting agents

Discrimination by letting agents on the grounds of disability, race, sex, sexual orientation or religion is unlawful. This remains the case even if a landlord has specified to an agency that s/he does not want disabled tenants or tenants of a particular race, gender, sexual orientation or religion. It is also unlawful for a landlord to impose this kind of condition on letting property.

This content applies to Scotland

Disability discrimination

The Equality Act 2010 makes it unlawful for letting or accommodation agencies to discriminate against a disabled person in the letting and management of premises. Examples of discrimination include refusing to let property to a disabled person, offering the property on worse terms than would be offered to anyone else, or preventing a disabled tenant from using any benefits or facilities.

There is no duty on a person letting or managing property to make adjustments to the property to make it accessible to a disabled person.  However a disabled tenant may have rights to request adaptations and have rights to install auxiliary aids. See the section on the rights of tenants with disabilities for more information.

Claims for unlawful discrimination under the Equality Act 2010 must be brought in the Sheriff Court. The court may award damages that may include compensation for injury to feelings. In general, claims must be instituted within six months of the act of discrimination.

The Equality and Human Rights Commission (EHRC) can provide advice and assistance to individuals and can carry out investigations into alleged instances of disability discrimination.

Race discrimination

The Equality Act 2010 makes it unlawful for accommodation agencies to discriminate on the ground of race against anyone seeking accommodation. In particular, they must not refuse or deliberately omit to provide details of available accommodation, or refuse or omit to provide their services on the same terms, in the same manner and of the same quality as would normally be provided for other people.

Claims for unlawful racial discrimination can be brought in the Sheriff Court and damages can be awarded. The EHRC can provide advice and assistance to individuals and can carry out investigations into alleged instances of race discrimination.

Sex discrimination

The Equality Act 2010 makes it unlawful for an accommodation agency to discriminate against women or men. The provisions and remedies are identical to those available under the Equality Act 2010. The EHRC can provide advice and assistance to individuals and can carry out investigations into alleged instances of sex discrimination.

Discrimination on the grounds of sexual orientation

The Equality Act 2010 makes it unlawful to discriminate on the grounds of sexual orientation. Landlords cannot discriminate on the grounds of sexual orientation when letting property, for example, refusing to let a property to a person because of their sexual orientation, offering property on different terms, or evicting someone because of their sexual orientation. [1] The small premises exemption applies (see below), which would mean that a landlord letting a room in her/his house would be exempt from the regulations.

Claims for unlawful discrimination on the grounds of sexual orientation can be brought in the sheriff court and damages awarded for successful actions. [2] The EHRC can provide advice and assistance to individuals and can carry out investigations into alleged instances of discrimination on the grounds of sexual orientation.

Discrimination on the grounds of religion

The Equality Act 2010 prohibits discrimination on the grounds of religion and belief. This could include a lack of religion or belief. [3] The legislation extends to anyone letting property, [4] for example, a landlord cannot refuse to let a room to people of a particular religion. The small premises exemption applies (see below).

Claims for unlawful discrimination on the grounds of religion and belief can be brought in the sheriff court and damages awarded for successful actions.[5] The EHRC can provide advice and assistance to individuals and can carry out investigations into alleged instances of discrimination on the grounds of religious belief.

Small premises exemption

There is an exemption from anti-discrimination legislation for small premises. [6]

For a property to meet the small premises exemption, the following conditions must be fulfilled:

  • The landlord or a near relative must live on the premises and intend to continue living there.

  • The landlord or near relative will share some of the accommodation with the tenant.

  • There is, in addition to the accommodation occupied by the landlord or near relative, accommodation for no more than two other separate households if the property is divided into separate lettings, or for no more than six other people in the case of a boarding house.

No DSS

Letting agents are entitled to consider affordability when arranging lets, but cannot do so by way of a 'blanket policy' of not accepting persons in receipt of benefits. In an English case, a ‘no DSS’ policy was found to be unlawful because it indirectly discriminates against women and disabled persons. This is because the evidence shows they are more likely to claim and rely on housing benefit and therefore be adversely affected by a ‘no DSS’ policy. [7] See a useful analysis of the case and links to the court details on the article Discrimination and 'No DSS' on Nearly Legal.

The Equality Act 2010 is UK legislation therefore this case, although not binding, may be of use in Scotland.

Clients with a protected characteristic may be able to raise action under Equalities Act 2010 in Scotland at the sheriff court. They should be referred to a specialist solicitor for this. They can also be signposted to Equalities and Human Rights Commission who may be able to give more guidance. See the pages on the Equality Act for information on what constitutes a protected characteristic.

Clients seeking advice for themselves in first instance should also know that a prospective tenant may also take action under the Letting Agent Code of Practice.

To do this they must first use the letting agent complaint system (if there is no formal complaint process this may also be breach of the Code) The client, or their adviser should make their complaint in writing, pointing out that any blanket policy to not accept applications from persons in receipt of benefits may be a breach of the Equalities Act 2010.

Note that under the Letting Agent Code of Practice, Letting Agents:

  • Must conduct business in a way that complies with all relevant legislation. [8]

  • Must not unlawfully discriminate against a landlord, tenant or prospective tenant on the basis of age, disability, sex, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, religion or belief or sexual orientation. [9]

If this does not resolve the situation, they can raise an action at tribunal and request compensation. See the section on Letting Agents in Courts and Legal Action.

Last updated: 15 July 2020

Footnotes

  • [1]

    s33 The Equality Act 2010

  • [2]

    ss.113-114 Equality Act 2010

  • [3]

    s.10 The Equality Act 2010

  • [4]

    s.33 The Equality Act 2010

  • [5]

    s.113-114 The Equality Act 2010

  • [6]

    Sch 5(3) The Equality Act 2010, s38(9) Equality Act 2010

  • [7]

    s.19 and s.29(1) Equality Act 2010.

  • [8]

    sch.1 para.16 Letting Agent Code of Practice (Scotland) Regulations 2016 SSI 2016/133

  • [9]

    sch.1 para. 22 Letting Agent Code of Practice (Scotland) Regulations 2016 SSI 2016/133