Court rules “No DSS” unlawful under the Equality Act

York County Court has ruled that so called “no DSS” policies – which put in place a ban on renting property to people who are on housing benefit – are discriminatory and unlawful under the Equality Act.

District Judge Victoria Elizabeth Mark declared that “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.”

The basis for this ruling of indirect discrimination is due to the fact that women and people with disabilities are disproportionately more likely to be in receipt of housing benefit, and therefore by extension are disproportionately affected by a blanket “no DSS” ban.

The charity, Shelter, who have been fighting against this issue for some time through their “End DSS Discrimination” campaign, hopes the ruling will send a clear message to landlords or agents that they risk legal action if they continue to refuse to rent to those on housing benefit. A study conducted by YouGov on behalf of Shelter, in December 2019 and January 2020, found that a staggering 63% of private landlords said they do not let, or prefer not to let, to people who receive housing benefit.

However, while this case may appear to have achieved this goal at first glance, there are some important factors that need to be considered:

1. The basis of the judgement was a finding of indirect discrimination. Therefore, any organisation applying a similar condition would have a defence if it can show its approach was a proportionate means of achieving a legitimate aim.
2. This is a County Court judgement, which does not set any precedent. This means that not only could this decision be overturned on appeal, but also that other County Court Judges are not bound by the decision. Therefore, another Judge could come to a different conclusion on similar facts.
3. A Claimant can only succeed with a claim of indirect discrimination if they can establish group disadvantage.  In this case the Claimant persuaded the County Court that women and people with disabilities are disproportionately more likely to be in receipt of housing benefit than other groups. But a Court should require evidence of this rather than working from a stereotype, so it will be interesting to review the written Judgement to assess the evidence presented on this point.
4. The written Judgement has not yet been released, so there is little more to do but speculate at this stage as to the evidence and arguments presented in the case.

One conclusion we can draw from this case is that while it is a good first step, and has continued to raise awareness of this DSS issue, the issue is far from decided and a new Court precedent has not been set. Higher Courts may first have to hear similar cases before a true change in behaviour around DSS policies becomes mandatory.

If this were to happen, it could potentially have an interesting knock on effect – on both buy to let lenders and landlord insurers. There are both lenders and insurers that, as part of their policies for providing funding/cover to landlords, require that the tenant cannot be receiving housing benefit – in essence similar policies to those at issue in the above case.