The exceptions to the rules

When you’re dealing with tenants, you obviously don’t want to discriminate against those who are disabled. Indeed, the 1995 Disability Discrimination Act – the final part of which came into force today – makes it unlawful for a landlord, or someone managing a premises, to discriminate in the way they allocate tenancies or in the way they generally have dealings with tenants.

But how can you determine whether what you’re doing is lawful? And, given that the act allows for treatment that could be construed as discrimination when it’s “justified”, how do you tell what’s “justified” and what isn’t?

Let’s look at the act. Section 21 says it is unlawful for a person with power to dispose of any premises to discriminate against a disabled person:

• in the terms on which they offer to dispose of those premises to the person
• by refusing to dispose of those premises to the disabled person
• in their treatment of the disabled person in relation to any list of people in need of premises of that description.

The code of practice makes it clear that a “disposal” includes letting or granting a licence, and any other legal form of disposal, as well as selling a property.

The DDA also says it is unlawful for the landlord or manager to discriminate against a disabled person occupying those premises:

• in the way they permit the disabled person to make use of any benefits or facilities
• by refusing or deliberately omitting to permit the disabled person to make use of any benefits or facilities
• by evicting the disabled person, or subjecting him or her to any other detriment.

What’s the justification?

Discrimination does not occur where the treatment is “justified”, but it can be difficult to assess whether a particular justification will withstand the scrutiny of the courts.

The test is an objective one, in which two requirements are considered. The first is that one or more prescribed conditions be met, the conditions being health or safety, incapacity to contract and that the treatment is necessary in order for the disabled person or other occupiers to use a benefit or facility. The second is that “it is reasonable in all the circumstances of the case for that person to hold that opinion”.

The justification test is best illustrated by applying it to some practical problems.

Can a landlord refuse to grant a tenancy to a person with learning disabilities?

This will depend on the extent of the disability and the capacity of the applicant to enter into a binding tenancy agreement.

If a person with learning disabilities is incapable of understanding the obligation to pay regular rent, it is likely to be reasonable to refuse the tenancy

If, after explaining the tenancy agreement, it appears that the person is incapable of understanding the obligation to pay regular rent or keep the property in good repair, it is likely to be reasonable to refuse the tenancy.

The position would be different, though, if there was an authorised receiver or someone who could act as guarantor.

Can a landlord refuse to let a tenancy on the grounds of restricted mobility?

Where the disability is such that it would present a risk to health and safety for the applicant to be housed in a particular property, a refusal can be justified.

The example used in the code of practice is that of a disabled person who has mobility problems and who lives alone – a refusal to let a third-floor flat to this person is likely to be seen as reasonable. But if the person is cohabiting or has other carers, it may not be.

Extra conditions

Can any additional conditions be included in the tenancy agreement?

Occasionally, it may be necessary to consider imposing restrictions on the use of the property or access to it to facilitate the use of the property by other residents.

The code of practice gives as examples a restriction on the use of shared laundry facilities where the tenant with a learning disability frequently breaks the washing machines if they have a learning disability or a restriction on the disabled person parking in front of the main entrance to a block of flats, rather than at the rear, because of the obstruction to other residents. Both of these are likely to be found reasonable.

Can a deduction be made from a deposit for wear and tear caused by wheelchair use?

Additional provisions are included in the code in relation to deposits. It is unlawful to charge a higher deposit than would normally be required but if there is abnormal wear and tear due to wheelchair use, it is justifiable for the landlord to retain part of the deposit against the cost of repairing the damage.

The code of practice provides many further examples. But it makes it very clear that each scenario must be considered on its own facts and that what may be justifiable in one circumstance will not be in another with similar but differing facts.