Disabled People’s Rights to Housing – Using the Equality Act 2010 Catherine Rayner Barrister 7 Bedford Row Chair Discrimination Law Association

Who is covered by the act? Any one who is disabled within the meaning of the Equality Act 2010 Any one who is associated with a person who is disabled under the Act Any one who is using or seeking to use a public service Anyone who is seeking to use/access private accommodation

Who is disabled within the EA 2010? Disability ( s 6 EqA 2010) A person will be disabled if they have a mental or physical impairment and The impairment has a substantial and Long term effect on their ability to carry out normal day to day activities Schedule 1 EqA 2010 9 s 2 (1) Long term means has lasted or is likely to last 12 months Or is likely to last for the rest of a persons life www.7br.co.uk - Email : crayner@7br.co.uk - tel clerks: 020 7242 3555

What does this mean in practice? There are two elements to the test First there must be an impairment which can be described – it does not have to be medically well recognised – Depression Limited ability to walk Reduced hearing or reduced sight ( other than that requiring wearing of glasses) Asbergers? Dyslexia Arthritis

What does this mean in practice? Second The impairment must have the long term adverse effect obesity can be a disability if it has a serious limiting effect Depression may or may not be a disability depending on the effect and the length of the effect Test is functional not medical

The Equality Act 2010 The Protected characteristics If an impairment ceases to have a substantial effect on a persons ability it is to be treated as continuing to have the effect if it is likely to recur ( s 2(2) schedule 1 EqA 2010) A severe disfigurement is to be treated as having the substantial adverse effect (s 2(3) Sch 1 EqA 2010) Substantial adverse effect is to be judged disregarding the effect of medical treatment or other measures being taken to correct, including the use of prosthesis but excluding spectacles and contact lenses ( s 1(5) sch 1 EqA 2010) www.7br.co.uk - Email : crayner@7br.co.uk - tel clerks: 020 7242 3555

The Equality Act 2010 The Protected characteristic Some medical conditions are automatically considered as disabilities including cancer; Hiv and Multiple sclerosis although not obesity Progressive conditions will be treated as having an impairment which has a SAE if the condition is likely to result in the person having such an impairment www.7br.co.uk - Email : crayner@7br.co.uk - tel clerks: 020 7242 3555

Direct Discrimination One person ( A) discriminates against another (B) if Because of a protected characteristic A treats B less favourably that A treats or would treat others Direct Discrimination is about comparison of treatment – different and adverse treatment because of disability is unlawful www.7br.co.uk - Email : crayner@7br.co.uk - tel clerks: 020 7242 3555

Direct Discrimination Can be unknowing or unconscious person does – no need for a motive or a deliberate act Can be based on prejudice or assumptions about the disabled which are well meant Can arise because of a persons associations with others ( i.e. if caring for a disabled person or living with or having a partner who is disabled) www.7br.co.uk - Email : crayner@7br.co.uk - tel clerks: 020 7242 3555

Direct Discrimination Can result from a positive act or an omission - failing to do something which is done for those who do not share the disability ( such as offering accommodation or providing with a service) or doing something which would not be done to a person who does not share the disability ( such as asking for a higher deposit; issuing a shorter tenancy ; only offering property on the ground floor

Direct Discrimination Cannot be justified or excused by claims that It was not our intention to discriminate We did not realise that it would be a problem We were trying to help and acting out of the best motives We have never had to deal with this disability before

Forms of Direct Discrimination Refusal to provide a service to someone with a disability by not registering them with the agency; not offering accommodation; failing to make them aware of possible available accommodation;

Discrimination arising from Disability Unfavourable treatment by A because of something arising in consequence of Bs disability which A cannot show to be a proportionate means of achieving a legitimate aim Applies only if A knew or could reasonable have been expected to know of the disability (s 15 EqA 2010) www.7br.co.uk - Email : crayner@7br.co.uk - tel clerks: 020 7242 3555

Examples of Something arising from the disability Need for and presence of an assistance dog Use of a mobility device Need for alternative format of written materials and agreements Displaying side effects of medication Displaying behaviours which arise from disability Having particular needs as result of disability such as handrails or a ramp or adjusted light switches for eg

Justifying the discrimination Some personality traits or behaviours have been used to justify discriminatory treatment – swearing or aggressive behaviour to others in a work place for example LFT for a reason arising can be justified if it is a proportionate means of achieving a legitimate aim

Disability Discrimination and knowledge A person will not discriminate against someone if they did not know or could not be expected to know of the disability If someone has a hidden disability or one which is being managed by medication informing a decision maker or service provider may be necessary if concerns about future discrimination Constructive knowledge is enough – ie if its obvious or should be obvious to a reasonable or ordinary person

Indirect discrimination Is concerned with different outcomes for different groups, despite the same treatment – it is about how some policies or practices or rules have an adverse effect on disabled people.

Indirect discrimination If A applies a provision criterion or practice to B, which is discriminatory in relation to a characteristic of Bs, they will discriminate unless they can justify the treatment as a proportionate means of achieving a legitimate aim

Indirect Discrimination A PCP will be discriminatory if it Is applied to people who do not have the same disability that B has It puts B at a particular disadvantage, compared to those who do not have the same disability as B ( or it would do so) B is put at that disadvantage and A cannot shown that it is a proportionate means of achieving a legitimate aim

Indirect discrimination Can be shown by statistical comparisons of groups Can be the result of a practice only affecting one person Can be justified, on the basis of being a proportionate means of achieving a legitimate end www.7br.co.uk - Email : crayner@7br.co.uk - tel clerks: 020 7242 3555

Service Provision – Section 29 EQA 2010 A service-provider (A) must not, in providing the service, discriminate against or victimise a person (B),— (a)     as to the terms on which A provides the service to B; (b)     by terminating the provision of the service to B; (c)     by subjecting B to any other detriment.

Service Provision – Section 29 EQA 2010 includes the provision of goods or facilities. the provision of a service in the exercise of a public function To the public To a section of the public

Service Provision – Section 29 EQA 2010 This includes All steps in allocating and providing housing/ accommodation under a public sector duty Managing public housing including maintaining and repairing Costs associated with housing – Council tax – see Jagoo v Bristol

Service Provision – Section 29 EQA 2010 A public function is a function that is a function of a public nature for the purposes of the Human Rights Act 1998.

a service-provider might discriminate by not providing a person with a service of the same quality or in the same manner or on the same terms Which the service-provider usually provides to the public (or the section of it which includes the person).

Premises section 35 EqA 2010 A person (A) who has the right to dispose of premises must not harass the person occupying or a person applying to occupy and must not discriminate or victimise against another (a)  as to the terms on which A offers to dispose of the premises to B; (b)  by not disposing of the premises to B; (c)  in A's treatment of B with respect to things done in relation to persons seeking premises.

Premises section 35 EqA 2010 A person (A) who manages premises must not discriminate against a person (B) who occupies the premises— (a)   in the way in which A allows B, or by not allowing B, to make use of a benefit or facility; (b)   by evicting B (or taking steps for the purpose of securing B's eviction); (c)   by subjecting B to any other detriment.

Duty to make reasonable adjustments Section 20 duty of EA sets out 3 situations in which a person who has the duty must Take such steps as are reasonable for them to have to take in order to avoid disadvantage or to provide an auxiliary aid

Duty to make reasonable adjustments Where a PCP puts a disabled person at a substantial disadvantage; Where a physical feature puts a disabled person at a substantial disadvantage or Where a person is put or would be put at a substantial disadvantage but for the provision of an auxiliary aid

Duty to make reasonable adjustments means that a person or organisation with the duty must adjust policies and procedures or even practices including terms and conditions of letting, provide different formats or remove offending terms or conditions They must make alterations to a building or premises to remove physical barriers to access – temporary ramp; wider door ways; They must provide aids to assist – better light switches; handrails

Duty to make reasonable adjustments – service and premises- Schedule 4 EqA 2010 The duty to make reasonable adjustments covers someone who lets premises or controls the premises or who is controller of a common hold where a premises is let the controller must vary any agreement so as to allow a tenant to make reasonable alterations to fixtures and fittings, although not to the physical features of a property

Duty to make reasonable adjustments – service and premises schedule 4 EqA 2010 Physical features does not include Furnishings or furniture Adjustments should always be allowed to Signs and notices Taps and door handles Entry systems and door bells Wall ; door or surface colours