The law on discrimination is now part of the Equality Act 2010 which came into force on 1st October 2010. All of the provisions on race discrimination from earlier legislation remain. This means that 'race', including colour, nationality and national or ethnic origin, is one of the 'protected characteristics' under the new act, along with others such as disability or sexual orientation. The act protects against both direct and indirect discrimination, as well as harassment and victimisation, on the basis of any of the protected characteristics.
The act is reinforced by the Human Rights Act 1998, which embodies the protection given by the European Convention on Human Rights. Article 14 of the convention gives protection against unjustified discrimination and article 6 against unfair procedures.
Note that where a local authority is required to treat people differently by another statute, for example when denying a housing allocation because of lack of entitlement resulting from of a person’s immigration status, it is possible that a breach of human rights may occur. As long as it has interpreted its duties correctly, the local authority is not required to remedy this: the person affected can seek a declaration of incompatibility from the courts, which requires the government to bring forward legislation to resolve the contradiction between the two pieces of legislation.
Direct discrimination occurs when a person is treated less favourably on racial grounds (including nationality) than another person would be treated in the same or similar circumstances. An example would be where a housing provider refuses to rent a home to someone on the grounds of race, ethnic or national origins. It is usually unlawful, but is allowed if:
- a charity's lawful aims are to accommodate or help people of a particular race or ethnic or national origin or nationality
- a housing association wants to make provision for a specific group who have a defined housing need, such as for housing with wardens who speak a particular language or hostel accommodation for refugees who have had traumatic experiences, or people who have specific dietary or religious requirements. There must be a demonstrable need and the special provision must be 'proportionate'.
Indirect discrimination 'occurs when a provision, criterion or practice which, on the face of it, has nothing to do with race or ethnic or national origins' is applied equally to everyone, but it:
- puts or would put people of a certain race or ethnic or national origin at a particular disadvantage when compared with others; and
- puts a person of that race or ethnic or national origin at that disadvantage; and
- cannot be shown to be a 'proportionate means of achieving a legitimate aim'.
The Equality and Human Rights Commission (EHRC) Codes of Practice on Racial Equality in Housing state very clearly:
'It would be unlawful discrimination if providers of housing were to assume that all people from abroad or all people from a particular racial group were considered ineligible under the relevant legislation, or if they asked only people from particular racial groups to provide proof of their immigration status.'
The codes are no longer statutory codes but they still provide useful guidance and examples. You can find the codes for England and Wales here.
The EHRC has also issued (non-statutory) guidance for social housing providers on complying with the Human Rights Act 1998, available here.
Since housing associations (unlike local authorities) are not legally required to refuse some people on the grounds of their immigration status, if they apply such tests they may be discriminating unlawfully. They can apply necessary tests to ensure they get their rent paid by, for example, finding out if applicants have enough regular income to pay the rent and, if not, asking about their benefit entitlement.
It is also unlawful to instruct anyone to discriminate, and this includes those who make or enforce discriminatory policies or procedures, whether or not these are carried out.
If discrimination has occurred, the person affected may take proceedings in the county court against the individual and the organisation that has discriminated. If the case is won, the court orders compensation to be paid for any losses and a sum for injury to feelings. There is no upper limit on this. The compensation is payable by the individual and/or organisation that has discriminated.
If the discrimination is by a public body (which in this context is usually a local authority), the individual may be eligible for legal aid to pay for legal advice or may obtain assistance from the EHRC to seek a judicial review of the actions of the body. The EHRC may also issue a compliance notice against the body. This also applies where a public body has contracted out services, for example to a company which it owns.
If there has been pressure to discriminate, for example by issuing or enforcing discriminatory policies, the EHRC may take legal action against the offending body or person. In some cases, they will offer legal representation for the case to be taken to the county court. In others, they will offer advice about how to proceed with the case and who else may be able to help. The Equality Advisory Support Service can offer telephone advice and support to people who believe they have suffered discrimination but will not represent: they may refer to legal providers for this. The Government Equalities Office publish a helpful leaflet (pdf) about how to deal with discrimination in services, including housing.
The EHRC may decide, as a result of complaints or other information, to conduct a formal investigation into a company or organisation where there is evidence of possible discrimination. If the investigation finds that there has been discrimination, a non-discrimination notice ordering the discrimination to stop and specifying what must be done may be issued. It may last for five years. A report is also issued and published. There have been several formal investigations into local authority allocation and related practices, and two into housing associations.