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

2. 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

3. 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 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
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4. 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

5. 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

6. 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)
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7. 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
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8. 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
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9. 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)
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10. 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

11. 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

12. 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;

13. 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)
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14. 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

15. 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

16. 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

17. 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.

18. 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

19. 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

20. 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
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21. 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.

22. 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

23. 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

24. 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.

25. 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).

26. 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.

27. 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.

28. 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

29. 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

30. 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

31. 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

32. 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