Disability Discrimination Act
A new Equality Bill will be considered by Parliament this year. This will rewrite the law relating to all kinds of discrimination including race and gender. The key issues for landlords in the private rented sector are firstly, disability discrimination and secondly, age discrimination. Until recently there were growing signs that tenants in the social sector faced with eviction were able to rely on disability (e.g. mental illness) as a defence to claims for possession, whether for rent arrears, anti social behaviour or other breach of tenancy terms. In 2008 a landmark decision by the House of Lords in the Malcolm Case meant that this was no longer possible. However, the Government have pledged as part of the new Equality Bill to override the Malcolm Decision. This means that potentially landlords who try to evict tenants suffering from a disability will have to justify the decision. Likewise, age discrimination will be extended so that it applies to the letting and management of premises.
Justification will be allowed as a defence to so called disability related discrimination or indirect discrimination (i.e. applying some practice or procedure which works against the person claiming discrimination). With both disability discrimination and age discrimination therefore when the justification defence is allowed the key issue will be what is required to justify the discrimination. The RLA will be campaigning to try to ensure that appropriate guidance is put in to place to help with the implementation of the law and that this strikes the correct balance to protect landlord’s rights.
Our concern is what a landlord will have to show to justify obtaining a possession order against a disabled tenant. For example, in his/her defence the tenant claims that, due to a mental illness, he/she does not understand the need to pay his rent, or because of his illness he has caused disruption to his neighbours. Anti discrimination legislation will override the landlord’s rights to take action under Section 21 against an assured shorthold tenant or to claim a mandatory possession order where the tenant is 2 months in arrear. You will have to justify claiming possession. In cases of anti social behaviour it is likely to be relatively easy to justify a decision to claim possession. Another tenant’s health or welfare may be affected. Rent arrears or other tenancy breaches which do not adversely affect another tenant may be more difficult to deal with in this situation. Will there have to be substantial rent arrears to justify possession? Will the landlord have to demonstrate that the tenant has failed to keep to arrangements to pay off the arrears? These are the areas on which the RLA will be keeping a keen eye as the legislation goes through Parliament and making representations to Government regarding the form of the Guidance which will accompany the legislation.
There is also European legislation in the offing dealing with discrimination and again the RLA is scrutinising this legislation with a view to making representations to Government.