Carl Davis reviews David Renton’s new book ‘Discrimination in Housing Law’ on behalf of SHAC.
Mea culpa. I must confess I am a non-legally qualified disability and housing activist. So when I was asked by the Social Housing Action Campaign (SHAC) to review David Renton’s new book ‘Discrimination in Housing Law’, Legal Action Group (LAG) 2024, I initially thought to rein in my lived experience and opinions on this book’s subject. I then realised that this would not do justice to the book or the audience of this website.
Raising Disability in Housing
SHAC brings together social housing tenants, leaseholders, and shared owners of social landlords. It also works closely with many housing workers and housing activists. But we also know that we are monitored by regulatory bodies – we see you – and of course many social landlords too.
All of these groups comprise people with disabilities and although my focus and work with SHAC has been mainly on disability, this book includes all groups covered under the Equality Act 2010 as it applies to discrimination in housing.
Similarly, SHAC, as its name implies, primarily focuses on social housing as will this review although this book (and the Equality Act 2010) applies to the private rental sector as well.
I must also admit that I expected a weighty obtuse legal tome that I would have to tediously plough through and struggle to make any sense of.
However, I was surprised and very relieved to be sent a slim almost pocket sized handbook, running to no more than a couple of hundred pages, written in a clear and concise style that enables as far as it is humanly possible to given the complexity of the law, easy reference and a comprehensive understanding of the Equality Act 2010. It shows how the two combined are applied in practice.
About David Renton
The author, David Renton, is a historian and barrister at Garden Court Chambers who has a background in employment and housing law. He has represented tenants in housing disrepair, possession, and similar cases at the county court. He has also championed various social causes including high-profile cases, around trade union law, anti-union discrimination, and free speech. Renton is also committed to making the law more accessible.
Beyond his legal practice, Renton has been a distinguished Professor of Practice at School of Oriental and African Studies since 2021. He has authored over twenty books and is keenly interested in the intersection between politics and the law.
David Renton
I hesitate to call Renton a populariser – he might sue me – but he is renowned for demystifying and cutting to the chase to explain complex legal issues in simple easy to understand language. His legal practice and approach certainly informs the way Discrimination and Housing Law is organised, structured and written.
Accessible Information
Discrimination in Housing Law is above all else an accessible book and to my mind, is suitable for a far wider readership than perhaps intended or envisaged by the author and LAG, however it obviously necessitates careful, close reading too.
This also makes the price point – £65 – a bit of a barrier for many potential readers of the kind I have in mind, including disabled tenants, but it is what it is, and this is what similar professional and academic reference books and guides sell for.
Needless to say, it would be helpful if concessions were available. The book’s subject, the Equality Act 2010, is a key piece of legislation in the UK that consolidates and broadens a range of earlier equality laws. The Act covers race, disability, and gender discrimination, among others. It is designed to protect individuals from unfair treatment and to promote a fairer and more equal society. This includes a fairer and more social housing sector and housing environment generally.
A Legal Handbook
The book opens with reference sections that include tables of cases, or precedents, statutes, the core legal frameworks of discrimination law including the Equality Act 2010, statutory instruments, which allow changes or fleshing out of the details of an existing Act of Parliament without the Government needing a new law, and related European and international legislation. In summary, laws, case precedents and developments that fall within the scope of the book which the author assures us are accurate as of February 2024.
This is a legal handbook, reference and guide for the Equality Act 2010 and its application to discrimination in housing so the precedents included are key to how the Act has been applied in discrimination in housing scenarios under specific circumstances and cases and are intended to elucidate as well as assist legal practitioners and professional housing advisers to more quickly and expertly research or prepare cases.
There are also cross references throughout the book allowing those without any legal qualifications to get a better grasp of the Equality Act 2010 and discrimination in housing law as they progress through it at their own pace.
There is a brief introduction and table of contents that offers an overview of the book’s content, structure, and objectives, including who it written for, legal practitioners and professional housing advisers. However, the non-legally qualified reader could also benefit from it, getting pointers on specific issues or areas of the Equality Act 2010 with respect to discrimination in housing. It can therefore aid a wide range of people who are not legal practitioners to more effectively seek and secure expert legal advice and representation.
The book itself is also broken up into clear, logical, and relatively easy to follow sections that most people could navigate.
A Dive into The Equality Act
Renton then takes a deep dive and guided exploration of into the Equality Act 2010. He provides a clear definition of protected characteristics, meaning who and what is protected under the Equality Act 2010, and the statutory torts of the Act (civil wrongs resulting from someone unfairly causing another to suffer loss or harm that could lead to a claim through the courts). He explains the process of proving discrimination, and the practicalities of enforcement of the Act through legal remedies. available to the court.
Renton unpacks the meaning of services and public functions under the Act, who the law requires to comply with it. This includes the distinction between various parts of the Act relating to service providers and premises. Social landlords fall into both categories as service providers and managers of premises. The duties of landlords and others are explored in parts three and four respectively.
The distinction between the role of service providers and managers of premises is important. Although it is unlawful for each to discriminate in largely similar ways, there are important differences between the two in respect of which protected characteristics are protected, and the burden placed on different types of landlord to provide reasonable adjustments.
In other words, it’s important to know which part of the Equality Act applies in any claim.
Renton thoroughly addresses the duties of landlords and other roles under both parts of the Act, meticulously dissecting each section, term, and obligation, often referencing relevant legislation and case law to clarify.
This review aims not to rewrite or paraphrase Renton’s comprehensive analysis but to highlight that understanding the detailed legal discussions in the book requires close study and use of its references.
The book’s well-structured content allows readers to focus on specific interests, or aspects of the Act such as forms of discrimination or legal defences in possession proceedings for example.
A Sector Failing
Before commenting further on the book’s in-depth exploration of the Equality Act 2010, forgive me for digressing into a relevant point that the most depressing observation in Renton’s book for me, unless I misunderstand him, is when he states that
“many, perhaps most Equality Act 2010 cases begin life as pure defences to another party’s claim”.
He goes on to say
“In housing they often arise as defences to claims to possession”.
This is depressing to read. SHAC’s Disability Invisibility Charter and work to raise awareness of disability and reduce disability discrimination in social housing has long highlighted the way that tenants with disabilities, particularly mental health issues, are often embroiled in a one-sided complaints process, anti-social behaviour (ASB) casework, and legal proceedings for injunctions and possessions.
Tenants and residents face eviction and homelessness because social landlords fail to consider their disability and need for reasonable adjustments when even the most trivial misunderstandings and disputes arise.
Most landlords still have no functioning mechanisms in place to prioritise these considerations as the Equality Act 2010 requires them to before escalating matters in the way highlighted, yet it is 14 years after the Act passed into law.
This also extends to disabled people being bullied and targeted by ASB in social housing too. We have had to call out certain elements within the social housing sector for regarding and treating mental illness and ASB as if the terms were synonymous.
This misuse and abuse of language informs and reflects practice. SHAC’s Disability Lead, who has horrific lived experience of her partner being targeted with ASB because of his hidden disability, and then being treated as if he was the perpetrator by her social landlord, has long expressed her frustration with this. She has tirelessly and constructively worked with organizations, MPs, and other decision-makers to find ways to address the near impossibility of disabled tenants exercising and enforcing their rights under the Equality Act 2010.
This includes considerable difficulties when trying to obtain legal advice and representation, and get remedy for discrimination in housing cases.
Renton’s observation suggests that the Equality Act 2010, at least in the context of housing, does not yet serve as an effective deterrent or a readily accessible source of remedy for tenants, except as a defence or counterclaim after the discrimination they face from their landlord has escalated to legal proceedings against them.
Securing legal aid and/or adequate legal representation from solicitors who specialise in disability law is very difficult – many disabled tenants have found it extremely hard to get any legal representation. This creates a barrier to obtaining remedy.
SHAC has found that disabled tenants involved in even minor disputes with their social landlord and raising concerns about their disability are ignored by the landlord or targeted to try to prevent the complaint escalating. This gives the landlord a perverse incentive to just up the ante and double down on their use of their complaints processes, ASB casework or legal proceedings against the victims of these problems.
Once matters escalate to legal proceedings, even the Housing Ombudsman is unable to intervene. Tenants are then assailed by their landlord’s external corporate dispute lawyers who often have great expertise in refuting claims of disability and brushing aside equality challenges.
Filling the Gap
This is why I think that Renton’s book has a potentially much wider readership, appeal, and use. Most people living or working in or around social housing have a rough idea what discrimination is, and may well have heard of the Equality Act 2010. They may have some knowledge of the range of protected characteristics covered by the Act, but very few have a good idea of its application, and this needs to change.
This book could help facilitate that change. It might take a bit of time and effort for the non-legally qualified tenant or housing activist to read, and to work out how best they can use it to increase their knowledge of discrimination in housing law. However, that’s as nothing compared to the time and effort social housing tenants and workers have put into trying to persuade social landlords to stop discriminating against their tenants and workers, and to change their negative behaviours.
Anyone who objects to the idea of those without legal qualifications attempting this should just reflect on the alternative as even those who favour direct action would be better armed and protected with an increased understanding of discrimination in housing law.
Understanding Discrimination and Related Concepts
The book sets out the primary torts or civil wrong under the Equality Act. These are fourfold. Direct discrimination is to treat someone worse than another person because of a protected characteristic. Indirect discrimination is similar but broader, and means having a rule or policy that applies to everyone but particularly disadvantages a person with a protected characteristic.
Harassment represents unwanted conduct related to a protected characteristic that violates someone’s dignity or creates an offensive environment. Victimisation involves treating someone badly because they have made or supported a complaint under the Equality Act 2010.
Specifically, discrimination arising from disability is when a person is treated unfavourably because of something connected to their disability, rather than the disability itself. This type of discrimination doesn’t require the treatment to be compared with that of a non-disabled person, which sets it apart from direct discrimination.
The breach of the duty to make reasonable adjustments occurs when an employer, service provider, or educational institution does not make necessary changes to support a person’s disability. This duty is fundamental to the Act, and designed to eliminate or reduce the disadvantages that disabled individuals may encounter in various environments.
Discrimination in Housing Law delves into the legal meaning, purpose and ramifications of each and all of these categories at depth and provides practical examples of how the Equality Act 2010 has been or can be applied where breaches of the Act occur.
The book also provides a detailed analysis of the Public Sector Equality Duty (PSED), including the PSED scheme, compliance measures, and enforcement. This section distinguishes the PSED from other landlord duties, and elaborates on its practical implications.
The PSED requires public bodies in the UK, which includes social landlords in their public functions, to consider equality issues in their day-to-day operations. Its key aims are to eliminate discrimination, harassment, and victimization, to advance equality of opportunity between individuals who share a protected characteristic and those who do not, and to foster good relations between individuals who share a protected characteristic and those who do not.
These aims ensure that public organizations actively address inequalities, promote diversity, and combat prejudice through their policies and practices.
The section on Discrimination on Other Grounds, explores discrimination beyond the typical scope of the Equality Act 2010,and the prohibition of discrimination within human rights law. The section on Housing Applications and Successions delves into discrimination faced by tenancy applicants, the homeless, and local authority cases, along with the law regarding succession. The “Ongoing Housing Relationships” section explores topics such as repairs, habitability, defective premises, quiet enjoyment, harassment, and landlord injunctions, all within the framework of the Equality Act 2010.
Some of these issues have received high profile media coverage in recent years. IITV News broadcast programmes covered several social housing scandals, highlighting cases of disrepair that disproportionately affected tenants with disabilities.
One prominent case involved the tragic death of Awaab Ishak, linked to black mould issues that were largely overlooked by a landlord who attributed the problem to a community’s ‘ritual bathing.’ Despite widespread mould issues in the community, this explanation was not considered racially motivated. In response, however, Awaab’s Law was enacted in July 2023 under the Social Housing (Regulation) Act. This followed advocacy from Awaab Ishak’s parents, Manchester Evening News, and Shelter.
Awaab Ishak’s death covered by the Mail and other media
In ‘Claims for Possession’, Renton addresses housing for vulnerable and disabled individuals, defences under the Equality Act for rent arrears and nuisance claims, the defences related to the PSED, and other pertinent issues like service charge disputes. The latter is a rising concern as highlighted by SHAC. This section also discusses potential discrimination issues and introduces new grounds for possession.
The section entitled ‘Long Leaseholders and Mortgagors’ explores topics such as forfeiture, defending possession claims by mortgagors, civil procedures, defences, and counterclaims. There is also a section addressing capacity issues, focusing on the decision-making abilities of individuals, particularly those with mental disabilities or impairments.
As Renton explains, the Act aims to protect people with disabilities from unfair treatment or discrimination based on assumed limitations in their capacity to comprehend or make decisions. This includes their involvement in legal proceedings. Additionally, the section covers the vulnerabilities of witnesses, as outlined in the UK’s Civil Procedure Rules (CPR). These rules ensure that vulnerable witnesses can provide the best possible evidence in court while being shielded from undue distress or disadvantage. The section also includes information on the appointment of assessors.
In cases related to the Equality Act 2010, assessors bring specialized expertise to courts or tribunals, especially in intricate discrimination issues. They aid legal decision-makers in comprehending specific aspects of protected characteristics, such as disability or other forms of discrimination, which might be beyond the court’s general expertise.
While assessors provide valuable insights and expert advice, they do not determine case outcomes. Their role is to ensure that judges and tribunals are well-informed about the complexities involved, aiding fair and informed decision-making.
Useful Resources
The book concludes with a section on Precedents, providing practical mock up legal documents including particulars of claim, the detailed written statement that a is submitted in a civil lawsuit, outlining the facts of the case and the basis of the claim, the legal argument and the remedy sought, defences and counterclaims. The book offers Equality Act 2010 application examples related to specific discriminatory practices and cases and, of course, an index, facilitating easy navigation of the book’s contents. The latter ensures tjat readers can quickly find information relevant to their needs.
Discrimination and Housing Law is primarily aimed at legal practitioners, housing representatives, advocates, and likely tenant groups with access to legal advice and expertise.
I would go further however, as I think anyone with a professional, political or personal interest in discrimination in housing law, including those experiencing discrimination in their homes or struggles to get housed, legally represented or not, or those trying to help and support them, could benefit from this book to varying degrees. At the very least, they will gain a clearer understanding of the legal and practical problems when challenging discrimination or securing remedy. This is a big claim for this almost pocket sized book, but I believe it is a legitimate claim.
There are many barriers to accessing legal advice and legally aided representation for non-employment related discrimination cases. This means that the book fills an important gap.
That’s not to say this book will equip affected tenants with the know-how to adequately represent themselves if they can’t secure legal representation, but it may do in a few cases. It will definitely help advocates to better respond to requests for help and support from those experiencing discrimination in housing.
Anyone who considers this approach to be over-reach should reflect on the gulf in access to justice between tenants and landlords. The law firm advising the majority of the G15 members — the most powerful and influential housing associations in England — on the Equality Act 2010 and related developments, also brags of its expertise in thwarting equality challenges for these organizations on its website.
Furthermore, this firm shrills for and collaborates with the Housing Ombudsman on compliance presentations. It sponsors industry conferences and events on compliance, and has essentially cultivated a culture akin to a tax avoidance scheme for landlords to regard the Act as optional. The result is a greater level of investment in circumventing the Equality Act than is utilised to comply with it. This includes re-routing public money and charitable funds intended for housing into the coffers of this legal firm.
Wider Benefits
I believe David Renton’s Discrimination in Housing Law is a crucial resource for anyone interested in the issues around discrimination in housing and the Equality Act, from casual observers to professionals deeply entrenched in housing law. It is of relevance to academics, trade union representatives, MPs, local councillors, GPs, community mental health teams, care workers, community groups, regulators, and policymakers and yes, tenants as well.
Given that discrimination can affect anyone, and everyone has or should have somewhere they call their home — a place they expect to enjoy quietly and securely, free from discrimination — this practical legal guide is clearly beneficial for a broad audience.
It is a unique source of information, knowledge, and expertise to enable them to better understand and organise around their work or activism. It will aid those who want to combat discrimination, and should be essential reading for decision-makers to help them avoid engaging in and perpetuating discrimination in housing.
I also suspect that like the classic and widely helpful and enabling CPAG Benefits guides, David Renton’s book will also run to numerous editions and become a staple on the bookshelves of all of the above as well as legal practitioners and advocates specializing in housing matters and discrimination law.
20 April 2024
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