Foreword by Chris Ryan, Strategic Litigation Solicitor, Shelter Scotland
In May 2018, Shelter Scotland hosted Scotland’s Equality Law and Housing Conference to develop an understanding of equalities law and how it applies to housing and homelessness law.
Funding from the Equality and Human Rights Commission made this event possible and it also allowed Shelter Scotland to commission and publish ‘Housing and Equality Law in Scotland’ written by Adrian Stalker, Advocate.
Shelter’s Scottish Housing Law Service have since chaired the Housing & Equality Act Legal Strategy Action Group (HEALSAG) attended by advisers, lay reps, solicitors and advocates representing homeless persons and tenants. HEALSAG meets quarterly to share best practice, raise awareness and to continue to develop an understanding of remedies and case law developments.
At our most recent meeting, we heard from Rose Arnall, solicitor in Shelter’s strategic litigation team in England. Rose has led Shelter’s ‘No DSS’ discrimination campaign over the last few years, and in the last couple of months has won two cases in court on behalf of her clients.
What follows is an article on these legal challenges, written by David Faith, Solicitor at the Equality and Human Rights Commission.
Two Strikes and You’re Out for “No DSS”?
David Faith, Solicitor at Equality and Human Rights Commission
“Sorry, we don’t accept Housing Benefit” will be a familiar refrain to anyone who is looking for a home in the private rented sector and who also claims benefits. Until recently, at least, “no Housing Benefit” signs could be seen in letting agents’ windows and in property advertisements. The shorthand for such policies – “no DSS” – is in itself a sign of how deep-rooted they are: ‘DSS’ refers to the Department for Social Security which was replaced by the Department for Work and Pensions (DWP) in 2001.
However, recent judgements from County Courts in York and Birmingham declared two such policies unlawful. Does this finally spell the end for DSS discrimination?
What is DSS discrimination?
DSS discrimination is the practice whereby landlords and letting agents reject an application from a potential tenant simply because he or she is in receipt of benefits. Sometimes the agent or landlord publicly advertises it as a fixed policy. On other occasions the applicant only discovers it when they make an enquiry and are rebuffed on the grounds that they receive benefits. Either way, DSS discrimination occurs when an application is not considered on its individual merits but is refused just because the applicant receives benefits.
The challenge to DSS discrimination
In recent years, a number of cases have been brought challenging the lawfulness of No DSS policies. The argument made by claimants is that such policies unlawfully discriminate against women and disabled people, contrary to the Equality Act 2010 (“EA 2010”).
The EA 2010 goes into detail on the legal framework as it applies to landlords and Letting Agents at Part 4 (Premises). In some circumstances, Letting Agents can also be covered under EA 2010 Part 3 (Services and public functions). Letting agents in Scotland must also adhere to the Letting Agent Code of Practice (as set out in the Letting Agent Code of Practice (Scotland) Regulations 2016). The Code of Practice echoes the EA 2010 and makes it clear that letting agents must not discriminate on the basis of protected characteristics such as disability or sex.
No DSS policies apply to both men and women and to both disabled and non-disabled people. However, we know that in Scotland (and across the UK) women and disabled people are significantly more likely than men and non-disabled people to claim Housing Benefit. For example, while sex is only recorded for single claimants of housing benefit who are not living in a couple, for those claimants where sex was recorded, the most recent figures from the DWP show that in Scotland 61% of claimants were female and only 39% were male. For disabled people, Shelter found that across the UK people claiming housing benefit are 2.5 times more likely to be in receipt of disability benefits than the general population. This indicates that No DSS policies put women and disabled people “at a particular disadvantage” compared to men and non-disabled people. To be lawful, indirectly discriminatory measures such as these require to be justified as a proportionate means of achieving a legitimate aim. It was conceded by the letting agents in both of Shelter’s cases that the ‘No DSS’ policy could not be justified.
“Jane” is a single mother of two children. She is a disabled person and has Attention Deficit Hyperactivity Disorder, anxiety, and depression. She had to leave her rented home because the landlord wanted the property back for a family member to live in. In October 2018, she saw an advert for a suitable property to rent and contacted the letting agent to express her interest. However, she was told that they did not “accept housing benefit” and, when she pressed them further, that they had had a “policy for many years not to accept housing benefit tenants”.
Jane, represented by Shelter and supported by the Equality and Human Rights Commission, brought proceedings in York County Court seeking damages and a declaration that the agent’s policy was unlawful. Several months in to the litigation, and after it had abandoned the policy, the agent indicated that it would agree to pay damages and to a declaration being made. An application by consent was duly made to the Court.
The case was heard by District Judge Marks who, having considered the Statement of Reasons agreed between the parties, granted a declaration that:
The Defendant’s former policy of rejecting tenancy applications because the applicant is in receipt of Housing Benefit was unlawfully indirectly discriminatory on the grounds of sex and disability contrary to sections 19 and 29 of the Equality Act 2010.
Stephen Tyler, a disabled father, has used a wheelchair since a road traffic accident in December 2016 and has mental health conditions. When looking for a property to rent, Stephen was told by estate agent Paul Carr that it was “company policy” to refuse to rent to people who receive housing benefit. This was despite him having a clean rental record and having always paid his rent on time.
Also supported by Shelter, Stephen was able to successfully prove this policy was unlawful and in breach of the Equality Act because it disproportionally affects disabled people.
Having listened to the merits of the case, in a judgement handed down on Tuesday 8 September, her Honour Judge Mary Stacey ruled that:
There is no doubt that there was a blanket policy that no one in receipt of housing benefit would be considered for the three properties. It put the claimant and other disabled people at a particular disadvantage when compared to others.
She went on to say:
We make a declaration that the defendant has unlawfully indirectly discriminated against the claimant by imposing a PCP [Provision, Criteria or Practice] that those in receipt of housing benefit could not apply to those three properties.
What next for DSS discrimination?
Whilst these decisions do not have the force of precedent, they will be of persuasive authority in England and may assist litigants in Scotland given the same Equality provisions apply to both jurisdictions. These cases are the first time that No DSS policies have been declared unlawful by a Court and are the strongest indication so far that such practices contravene the Equality Act 2010. It certainly stands as a warning to landlords and letting agents that they risk legal action if they continue to operate blanket bans against applicants in receipt of benefits. Prospective tenants seeking to bring an action of this sort could do so in the Sheriff Court in Scotland and legal aid may be available to assist with a claim. Claims must be brought within 6 months of the incident complained of and the Sheriff must consider appointing an assessor.
Encouragingly, the Scottish Association of Landlords recently confirmed that accredited landlords must not discriminate against a tenant or prospective tenant because of their entitlement to benefit.
However, recent news reports suggest landlord practices across the UK have, so far, yet to change. Will the two strikes in quick succession of Jane and Stephen’s cases be enough to bring an end to “No DSS” discrimination? It is perhaps too early to tell, but as the Equality and Human Rights Commission have commented:
If landlords and estate agents don’t change their policies and practices, they will be at risk of claims of discrimination from would-be tenants. 
The author acknowledges the work of Rose Arnall, solicitor at Shelter and Tessa Buchanan, barrister at Garden Court Chambers, who wrote on this issue for Legal Action Group and is grateful for their contribution to this article.
For more on Shelter’s ‘No DSS’ discrimination campaign, see the blog https://blog.shelter.org.uk/2018/11/stop-dss-discrimination-live-blog/
If you have been affected by a landlord or letting agent’s ‘No DSS’ policy in Scotland, seek advice from a law centre or Shelter Scotland’s helpline on 0808 800 4444.
 DWP (2020) Housing Benefit – Data from April 2018, May 2020, Available at: https://stat-xplore.dwp.gov.uk/webapi/jsf/dataCatalogueExplorer.xhtml
 Written evidence from Shelter to the Work and Pensions Committee, March 2019, Available at: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/work-and-pensions-committee/no-dss-discrimination-against-benefit-claimants-in-the-housing-sector/written/97946.pdf
 S.114 Equality Act 2010
 Scottish Association of Landlords, May 2019, Available at: https://scottishlandlords.com/news-and-campaigns/news/no-dss-policies/