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The Equality Act and Housing

The Equality Act has significant implications for social landlords, especially in relation to disabled and ethnic minority tenants. Samantha Jackson outlines what the main issues are likely to be.

The majority of the substantive sections of the Equality Act 2010 (“the Act”) are now in force. In relation to premises a person who has the authority (or anyone who must give permission (see s.34 of the Act)) to dispose of premises (which includes a right to sell, assign, let or sub let (see s.38(3) of the Act) must not by the terms on which s/he offers to dispose of the premises, by declining to dispose of the premises or in his/her treatment of a person seeking the premises unlawfully discriminate against any person on the basis of a protected characteristic (see ss.4 and 32 of the Act). Harassment and victimization are also prohibited (see s.33(3 and(4) of the Act).

Under s.35 a manager of premises (the term manager is undefined in the Act) must not discriminate against a person who occupies premises in the way in which s/he allows or prohibits the use of any benefit or facility, by evicting that person or taking any steps to secure evictions, or by subjecting that person to any other detriment (s.35 of the Act). A manager must not harass the person occupying the premises or a person who applies for the premises and neither must they victimize a person who occupies premises in the way in which s/he allows or prohibits the use of any benefit or facility, by evicting that person or taking any steps to secure evictions, or by subjecting that person to any other detriment.

The general duty under s.149 of the Act (Public Sector Equality Duty) will apply to Private Registered Providers of Social Housing in their functions as a public authority due to the decision of Weaver v London &  Quadrant [2010] 1 W.L.R. 363 . This means a local authority as well as a PRPSH now has a duty to demonstrate that it is taking action on race, disability and gender in making their policies and in the delivery  services. This may mean a review of all policies including those for the allocation and maintenance of housing stock.

The Act extends the scope of the duty to make reasonable adjustments so as to require the removal or alteration of physical features and fixtures and fittings of a building (see ss.20(9) and (10) of the Act and schedule 4) including the common parts (see s.36 of the Act).

The Equality Act 2010 (Disability) Regulations 2010 (SI 2010/2128) specifies the factors to be considered when deciding whether it is reasonable to require the adjustment to be made. Protection from indirect disability discrimination (s.19 of the Act) and discrimination arising from disability (see s.15 of the Act) are hoped to cure the problems caused by Malcolm v Lewisham [2008] UKHL 43, the result of which had far reaching consequences throughout discrimination law as it restricted the scope to claim less favourable treatment.

The provisions of s.15(2) of the Act may be relied upon by a local authority or a PRPSH but public law defences seeking to aver an authority has failed to make reasonable inquiries will be a common response. It is
likely that a defence based on unlawful discrimination will also rely on a generalised public law defence (that is where the court is concerned whether the process leading up to the decision was defective) and/or a breach of Article 8 of the ECHR (that is where the court is concerned with the outcome of the decision and whether it violates the occupier's convention rights regardless of how the decision was arrived at).

In two recent cases general guidance in the application of discrimination law for premises and the likely to approach s.149 of the Act can be seen:-

Pieretti v Enfield LBC [2011] H.L.R 3 concerned a homelessness decision and the interpretation of s.49A (1) of the Disability Discrimination Act 1995 (“the 1995 Act”) which required a local authority, in carrying out their functions to have regard to “the need to take steps to take account of disabled persons’ disabilities.

This provision is now replaced with s.149 of the Act (Public Sector Equality Duty).  The appellant and his wife were joint tenants under an assured shorthold tenancy which came to an end in April 2008 when the landlord was successful pursuant to a s.21 Housing Act 1988 no- tice served due to rent arrears and delays in paying rent. The appellant applied to the local authority for assistance under Part 7 of the Housing Act 1996. On the application enquiry form he declared he suffered from depression for which he took medication and his wife had acute back problems and arthritis. However the appellant did not declare he was a disabled person. In the full application form the appellant and his wife stated they were both disabled.

The local authority made enquires; the appellant’s G.P confirmed the depression and his wife’s arthritis, and the former landlord confirmed possession had been sought because of rent arrears and delays in payment.

The local authority held the appellant was intentionally homeless and upheld that decision on a review. In a s.202 Housing Act 1996 appeal the decision was quashed. In June 2009 the local authority made a new review decision and decided the appellant and his wife were intentionally homeless because they had delayed paying rent to a previous landlord. The appellant ap- pealed to the county court and this appeal included the contention the local authority had breached their duty under s.49A(a) of the 1995 Act. The county court judge dismissed the appeal.

The Court of Appeal allowed the appeal for the following reasons:

The duty under s.49A(1) of the 1995 Act applied to the formulation and the application of those policies in a case; for disability to play its rightful part in determinations by authorities there should be a culture of awareness of the existence and the consequences of disability; the carrying out of inquires and making decisions under Part 7 were functions of local authorities for the purposes of s.49A(1) of the 1995 Act and thus an authority had to have due regard to the need to take steps to take account of a disabled person’s disabilities when making a decision under Part 7; where a local authority was not invited to consider an  applicant’s disability it was wrong to say an issue of disability should only be considered if it was obvious, but neither was a local authority required in every case to make inquiries as to whether an applicant was disabled. Thus on the facts the reviewing officer had been under a duty to make further enquiries into whether the appellant was disabled and by failing to do so the duty under s.49A(1) of the 1995 Act had
been breached.

In the case of Beedles v Guinness Northern Counties Limited [2011] EWCA Civ 442 the Court of Appeal stated the correct approach to ss.24C and 24D of the 1995 Act as amended by the Disability Discrimination
Act 2005 and outlined, albeit briefly, that if the appeal “turned on the original dispute as to the meaning of “enjoy” and “enjoyment” it would affect the construction of the new Act which refers to a tenant’s “enjoyment of
premises”” (Moses LJ, paragraph 8).

Under the 1995 Act the person who let or managed residential premises unlawfully discriminated against a disabled person if he unreasonably refused a request made by the tenant to provide an auxiliary aid or service. These provisions are replaced with similar provi- sions in ss.20, 21, 22 and 38 and Schedule 4 of the Act (also see the Equality Act 2010 (Disability) Regulations 2010- SI 2010/2128 for the factors to be  taken into account when deciding whether it is reasonable to require the adjustment to be made.

The appellant was disabled and an assured tenant. The terms of the tenancy required him to decorate the premises. The appellant argued he was unable to deco- rate because he suffered from regular epileptic seizures. The landlord waived its right to insist upon internal decorating but the appellant argued the landlord was obliged under to carry out repairs and decorations to a standard that would enable him to enjoy his occupation of the premises within the meaning of s.24C(3) (a) of the 1995 Act.

The first instance judge rejected the appellant’s contention, made findings of fact of the state of the premises and held the 1995 Act’s provisions did not oblige the provision of aid or services beyond that ordinarily expected in a landlord and tenant relationship.

The Appellant appealed and submitted he ought to be able to perform the normal activities of a tenant and do more than just “live there” whilst feeling reasonably comfortable in his home which he argued had become shabby due to neglect.

The appeal was dismissed as the findings of fact re- garding the state of the premises precluded a conclusion that the absence of decoration by the landlord made it impossible or unreasonably difficult for the appellant to enjoy the premises pursuant to s.24C(3)(b) of the 1995 Act. Further they precluded any breach of the covenant of quiet enjoyment in the tenancy as the right to “enjoy” the premises was to be exercised in accordance with the tenancy, in its normal sense in similar contexts as “the exercise and use of the right and having the full benefit of it, rather than to deriving pleasurefrom it” (Pearson LJ Kenny v Preen [1963] 1 Q.B. 499 at 511).

The correct approach to ss.24C and s24D of the 1995 were set out with it being noted any Codes of Practice were helpful but the examples used in them could not be determinative of the meaning of a statute. Lastly, anti-discrimination provisions were generally to be benevolently construed towards intended beneficiaries.

Samantha Jackson is a barrister at 1 Chancery Lane.

A longer version of this article can be obtained from the Business Manager, Genevieve Quierin (This email address is being protected from spambots. You need JavaScript enabled to view it.).

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