Was Shelter’s campaign with Rosie likely to succeed if it got to court?

Last week Shelter issued a document in partnership with the National Housing Federation (NHF) called “Stop DSS discrimination” Click Here

Their argument is on Page 6, with the heading “What does the law say – is a blanket ‘No DSS’ policy unlawful?”  (The answer is No, it is not unlawful, but they claim it might be, based on the following argument: a ban on both male and female HB claimants is indirect sex discrimination against women because there are more of them.)

It runs:

“The Equality Act 2010 makes it unlawful to discriminate against anyone with a ‘protected’ characteristic – such as sex, disability or race. Under this law, you are protected from discrimination across a number of areas, including at work, in education and importantly, when buying or renting a property.

Looking at the demographic of who claims housing benefit there is evidence to suggest that some groups – for example women and people with a disability – are disproportionately affected by ‘No DSS’ policies.

For example, analysis by Shelter shows that people in receipt of disability benefits are three times more likely to also receive housing benefit.

Additionally, our analysis of official figures from the Department for Work and Pensions suggest that 60% of adults on housing benefit are women. Additionally, these figures show that 95% of single parents receiving housing benefit are female.

We believe an outright ban on housing benefit tenants indirectly discriminates against women and people with disabilities and could therefore be unlawful.

This argument was recently tested by Rosie Keogh, who with support from Shelter and the Bar Pro Bono Unit, took legal action against her letting agent.  The letting agent admitted to indirect discrimination and agreed to settle out of court, and Rosie was awarded compensation.

The outcome of this case strongly supports Shelter and NHF’s view that ‘No DSS’, policies or bans could be unlawful and open to legal challenge under the Equality Act.”

Page 7 gives a sort of background to Rosie’s case.  It reads “We can’t help you if you’re on housing benefit. These were the words that prompted Rosie’s ejection (sic) from a letting agent’s office last year, dashing her hopes of finding a new home for her and her son.

“Rosie is a working mum and a former paralegal with a law degree, but when house hunting she encountered a letting agent that could not see past the fact that she claimed housing benefit.

“Rosie had been living at her address for 11 years. Although she had never missed a rent payment, the house was damp and mouldy, which had been causing problems for her seven-year-old son, who is asthmatic.

“After searching for a suitable property, she found one within her price range and visited the letting agent to begin filling out the paperwork.

“Due to childcare responsibilities Rosie now works part-time, and uses housing benefit to top-up her earnings and help pay the rent. However, when she explained this to the letting agent, things became awkward. The agency said it would not proceed with her application because she claimed housing benefit. It did not even ask how much housing benefit she would be receiving.

“Rosie’s former line of work in employment law spurred her on, and she decided to fight this unfair treatment by the letting agent – taking legal action against them on the grounds of indirect discrimination on the grounds of her sex. This is supported by Shelter’s analysis of official figures, which show that single mothers are more likely to claim housing benefit in the private rented sector.”

“In the end, the letting agent admitted to indirect discrimination and chose to settle out of court, paying Rosie compensation.”

And who can blame the agent, with the saintly Shelter and a Pro Bono barrister ganging up on him, for not spending his time and his own money fighting this claim, however spurious it might be?  And what is the significance of an admission of indirect discrimination?  This concept has yet to be established.  The agent was forced to admit it by Shelter to avoid incurring the costs of defending his firm in a court hearing.

The question this account begs is what was the compensation for?  What had she suffered or lost?  The agent actually saved her the time of filling in a futile application form.

To summarise the propaganda: a law graduate doing part-time para-legal work went to her letting agent of 11 years standing, but he said he couldn’t help her because she claimed HB.  So she sued him for compensation for indirect discrimination, correct?  Well, that is what Shelter is implying now, but a BBC report back in February casts a different light on it.

This reveals that Rosie’s part-time work was as a cleaner, and she wanted to move into Kings Heath, “a smart area of Birmingham” in May 2016.

The agent told her it would not be proceeding with her application for a property in Kings Heath before it had looked into her individual circumstances or assessed how reliable a tenant she would be.

After a letter of complaint was dismissed by the agents, the mother of one issued a claim for discrimination in the county court.  “I felt something had to be done to challenge it. I was motivated by anger at such inequitable practice,” said Rosie.  “It made me feel like a second-class citizen.”

“Eighteen months after Rosie first began her fightback (sic), lettings agent Nicholas George admitted indirect discrimination on the grounds of her sex, settling out of court with £2,000 compensation.

“She also had help from the Bar Pro Bono Unit with the case who found a barrister willing to help for free.  Robert Brown gave advice and drew up the consent order which was witnessed by a judge at Birmingham County Court.

“Although not setting a legally binding precedent, the case established that the practice could be considered indirect sexual discrimination.”

Polly Neate, chief executive of Shelter, said private renting was so expensive that many people could not get by without housing benefit, even if they were working.

“Our advisers repeatedly hear from desperate mothers battling to find someone willing to let to them, in spite of being able to pay the rent.

“We are urging all landlords and letting agents to get rid of ‘no DSS’ policies, and treat people fairly on a case-by-case basis.”

BBC News Click Here

Nicholas George Ltd is an independent family-owned agency, with one office. Its website says it generally deals in the mid to upper end of the market.  Shelter and the Pro Bono Unit  courageously took on this little agency, because it wouldn’t let a particular property to Rosie.

To summarise correctly: a single mother working part time as a cleaner wanted to move into a specific property in a smart area, but couldn’t afford the rent on her wages.  She was a stranger to the agency she went to.  The agent did not let her waste her time on an application form because she was on HB.

This would presumably also have happened if the applicant had been a male on HB, with or without a child. I have never heard of a landlord telling his agent to accept males on HB, but not females on HB.

I imagine that if the landlord of the property Rosie selected would have accepted a single mother on HB working part-time as a cleaner the agent would have asked for her financial details – that’s his job.

However, Rosie got angry sent a letter of complaint,and when this was dismissed she decided to sue him.

Shelter says: “We believe an outright ban on housing benefit tenants indirectly discriminates against women and people with disabilities and could therefore be unlawful.”  However, Rosie did not suffer from an outright ban by the agent.  “After searching for a suitable property, she found one within her price range and visited the letting agent to begin filling out the paperwork.”

The agent knew whether or not the owner of that property accepted HB. Does Shelter think that it knew better than the agent?

It seems to me that by not asking how much HB she was getting he refrained from giving the impression of discrimination.  If he had asked her how much it was the question would have suggested that the landlord would take an HB tenant, just not her.  It seems to me that she was treated fairly, on a case by case basis, just like Polly Neate urges.  Rosie was considered, as an individual, for one specific property.  You can’t get any more case by case than that.

Who was the victim here, Rosie or the man forced to pay her £2,000?

Pro Bono means for the good of the public.  It didn’t do Rosie much good, apart from the two grand.  Although she was useful in Shelter’s quest for legal test cases and publicity, they did not get her a new property.  “In the end, Rosie gave up trying to find a new home. Her house is still damp and unsuitable for her son.”  More than two years later.

As well as providing her full name, Shelter have put her photograph in the document, thus clearly identifying her to prospective agents and landlords.

Shelter says “The result of this case was a significant step.”  Yes indeed, but not in the way they claim..  No-one apart from Shelter believes that forcing an agent into an out of court settlement changes anything. It has no effect in law.

“The outcome of this case strongly supports Shelter and NHF’s view that ‘No DSS’, policies or bans could be unlawful and open to legal challenge under the Equality Act.”  How does it do that, Polly?

The real significance of this step is that they have shown they will gang up with a free lawyer against a single-branch agency – like Goliath bravely taking on David.

The BBC’s article also had this quote:

“Chris Norris, head of policy at the National Landlords Association, said  “The number of landlords willing to rent to housing benefit tenants has fallen dramatically over the last few years because cuts to welfare and problems with the universal credit system are making it more and more difficult for anyone in receipt of housing support to pay their rent on time and sustain long-term tenancies.”

That is the crux of the matter.  Landlords need to receive the rent on time and in full – they are not charities.  Shelter should concentrate its efforts on the above causes of the problem instead of persecuting agents with spurious claims, if it really wants to improve matters.

Property Industry Eye also had an article last February about the case.  It said “Solicitor Giles Peaker, who writes the Nearly Legal blog, said that since the case was settled out of court it settles no principle in law.”

These are some of the comments under that article, in case you missed them, Polly.

• “Many agents shun dss’. That’s because shelter think it’s fine to squat if they don’t feel like paying the rent and then pay their court bills.”
• “Lettings is for big companies now. You would be mad to try and take on the gov’t and the media with this witch hunt mentality.”
• “Shelter, “providing no shelter since XXXX”
• Shelter “slowly trying to put estate agents out of business since XXXX”
• Shelter “Donate to keep our chief exec in the Shelter / mansion he is accustomed too”
• Shelter “Undercover political lobbying, funded by innocent donations since XXXX”
• When is someone going to report them to the ASA for calling themselves Shelter !”
• Many landlords who did accept benefit funded tenants have now stopped.”The main reasons being, delays in HB of up to 12 weeks for the tenant to be in payment, or the roll out of UC which hands the housing element directly to the tenant. A small minority of which do not regard paying for a roof over their head as the priority bill. As agents, we work for the landlord and we act on their instruction, unless that instruction is clearly discriminatory. I fail to see how a landlord or agent is discriminating against gender simply for wanting a tenant who can pay the rent immediately so that the mortgage can be paid on time. We take our commission from rent in payment, we cannot run on false promises, we have staff who need to pay their rent or mortgage, if they’re lucky. You can’t keep moving the goal posts and expect the players to stay on the field! Or is that the idea? If any other industry were under attack in the way ours is, the unions would be at the coalface putting a stop to it. It would also be nice to see SHELTER use some of its wealth to actually provide shelter instead of blowing it all on trying to be the Greenpeace of the property sector!” PropertyIndustryEye Click Here

Would it have made any difference to the number of landlords who would rent to an HB claimant if a precedent had been set for banning a blanket ban?  Firstly, Shelter’s survey showed that these were a tiny minority.  Secondly the number of landlords who take HB claimants is already shrinking. There are many reasons for this: councils paying HB to the tenant instead of to the landlord, freezing or capping HB/LHA, the introduction of UC, and Osborne’s restriction on finance cost “relief” to mention a few.

I will not ask you to vote on the question in the title, sometimes court verdicts are surprising.  However, I think this saga raises a more important question.

Please select one of the following which best reflects your thoughts in the Poll below:

• Shelter has lost sight of its original purpose by using resources paid for out of charitable donations in supporting an attempt to establish a legal precedent, using a spurious argument, which would not make any more properties available to HB claimants, instead of helping Rosie to find a dry property, or at least get the leak repaired
• Shelter was right to use the resources – and Rosie – in this way, even if it has blighted her chances of moving to a dry property in future.

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