A. About the Residential Landlords Association 1. The Residential Landlords Association (RLA) is one of the two national landlords associations operating throughout England and Wales. We are a direct membership organisation. We have over 7,000 subscribers. Members control or own over 100,000 units of accommodation. We represent landlords of all sizes from the largest portfolio holders down to small landlords with a handful of properties. Our members rent out residential accommodation of all descriptions to tenants who include families, couples, single people, working people, professional lets, students and benefit claimants. 2. The RLA works with local landlords associations. We keep in contact with our members through questionnaires, our very well used and successful web forum, our advice line, meetings with members and feedback from individual members. Each member receives a bi-monthly “glossy” magazine as well as frequent email news letters to keep them informed. The RLA is headed up by elected directors who are themselves working landlords. In these ways we are able to keep in touch closely with the thoughts and feelings of our membership nationally. B. General Observations on the Consultation Paper/draft Directive 3. The UK already has a well developed series of laws addressing the different types of discrimination. The RLA believes that further legislation via the European Union is unnecessary, particularly at a time of deep recession. It will result in yet more regulatory burdens on business, especially small businesses, particularly as the main items with which we are concerned with in this response will prove to be very costly. 4. The main concerns of the RLA, in responding to this consultation, are in relation to disability discrimination and age discrimination. Our response is primarily concentrated on the housing aspects related to these two equality strands. 5. We are very concerned at the generalisation within the drafting. As is so often the case “the devil is in the detail”. There is a lack of certainty and clarity. The consequence is that it is left to decisions of the Courts, particularly the European Court of Justice, to interpret and implement the detailed provisions of any directive. This is wrong. Decisions of this kind should be made by elected politicians and Governments; not lawyers sitting as judges in courts. This approach leads to great uncertainty on the part of our members as to what is required of them. In consequence they may face substantial claims for damages for failing to implement something when no one is clear what needs to be implemented in the first place. Time and time again this approach means that it is left to some landmark decision at the European Court to actually decide what has to be done to comply with the legal obligations imposed by the Directive. 6. In the view of the RLA it is very important that the UK Government seriously considers representations made by trade bodies such as ourselves and opposes excessive requirements which result from this draft directive if it were to be adopted as it affects the private rented sector in England and Wales. 7. The RLA also has concerns about certain aspects of the Equality Bill, currently passing through Parliament. These concerns would also be very relevant should the proposed directive be adopted. 8. As UK law has recognised, the letting and management of premises raises very different issues to other aspects of discrimination. Quite rightly UK law has categorised premises separately from other goods and services, although certain requirements do overlap. 9. One particular issue of concern is that a distinction ought to be drawn between the initial access to housing on the one hand and ongoing management issues where entirely different considerations can arise. One must question why the EU has become so involved in the detail of the way housing is managed and provided on an ongoing basis, as distinct from the initial access. This give rise to particular problems in the field of indirect discrimination. It is one thing to discriminate against someone by refusing access to housing purely because of their sexual orientation and another when it comes to having to evict someone, e.g. because of anti social behaviour or rent arrears. The difficulty is that a broad brush directive of this kind is wholly inappropriate to the many and varied situations which can be encountered in practice. Indeed, it can have a perverse response in that it can ban beneficial aspects of housing management on discrimination grounds. In the UK we are able to produce a very detailed legislative code which can deal with these different situations but this is most certainly not the case when one has to rely on a very broad brush approach as envisaged by the proposed directive. 10. One issue of concern is the extent to which the Directive generally will apply to the private rented sector. The draft Directive talks of housing available to the public. It also refers to professional and commercial activities. To what extent is one engaged in a professional or commercial activity if one lets out one’s own house or indeed a room within one’s own house? What if you rent out a couple of properties as a side line? Similar issues have arisen in relation to the definition of consumer under the Unfair Terms Contracts Regulations, which transpose the relevant EU Directive in to UK law. The recent case of the Office of Fair Trading -v- Foxtons (before Mr. Justice Mann in the Chancery Division) has given some guidance on this, albeit in an entirely different context. Is the landlord letting out up to 2 properties carrying on a commercial activity? This ought to be clarified. In the view of the RLA there should be an exemption from small letting operations of this kind which cannot really be regarded as either being professional or commercial. 11. We must not underestimate the risk of serial complainers. Experience has already shown that this happens within employment law where people go round seeking jobs and then make what turn out to be spurious claims of discrimination. There is a particular risk of this happening in relation to premises, especially in relation to the anticipatory requirement for modifications. What is to stop someone going round all kinds of premises and then bombarding the various landlords with claims?. This would then be a very considerable worry and burden in having to defend these cases. The approach envisaged by the Directive in this regard would lead to this kind of claim. C. Disability Discrimination 12. Having looked at some general issues, we propose to focus first on disability discrimination. (a) Under current UK Discrimination Law in relation to the disposal and management of premises, there is no anticipatory duty to make reasonable adjustments. Such an obligation only arises if it affects a specific disabled individual and that person requests the adjustment. The adjustment then has to be made at their cost. D. Draft Directive – Article 4 – detailed provisions relating to disability discrimination – drafting and interpretation 13. The drafting of Article 4 is far from clear like much of the remainder of the directive. Unfortunately, it is open to interpretation and there are ambiguities. We have tried to understand its detailed implications. It would appear that in terms of housing Article 4 (1)(a) (in summary) provides that the measures necessary to enable persons with disabilities to have effective non discriminatory access to housing (which is available to the public), shall be provided by anticipation, including through appropriate modifications or adjustments. There are then two exceptions. Firstly, such measures should not impose a disproportionate burden. Secondly, they should not require fundamental alteration to housing or the provision of alternatives thereto. Again, it is not clear what is meant by “the provision of alternatives thereto”. What is this intended to exempt from the scope of this particular provision? If one is selling a pair of shoes which are not suitable for someone with a foot deformity presumably it means that one does not have to manufacture a range of shoes that would cater for that person’s needs. How does this idea impact in terms of the provision/management of housing? Frankly, we have no idea. 14. Article (1)(b) then goes on to provide that notwithstanding the obligation to ensure effective non discriminatory access where needed in a particular case reasonable accommodation (adjustment) has to be provided. This is, however, subject to one exception only namely it imposes a disproportionate burden. There is no reference to an exception for any fundamental alteration. This is presumably in answer to an individual case of a resident but this needs to be confirmed and spelt out. E. Linking housing and goods and services in relation to disability 15. The drafting simply lumps housing together as one aspect of goods and services. Linking goods and services with housing is inappropriate. Buildings have their own peculiarities and issues. UK law has recognised this by making special provision for premises. A pair of shoes or the provision of dentistry for example and a hundred year old house have little or nothing in common but the two are dealt with by the same provisions which is unworkable. Separate special provisions need to be made for housing to meet its particular circumstances, especially its permanence and whether it is new accommodation or existing accommodation with the vast differences which can apply according to the age, nature, layout etc of existing buildings. F. Impact of Article 4 – alterations to meet specific disabled needs 16. As drafted the provisions of Article 4 could have a major impact on residential landlords who could have to incur significant costs in dealing with specific disabled tenants/prospective tenants/residents. The reference to “in a particular case” in Article 4 should presumably be interpreted as meaning specific disabled individuals. This is unclear and needs to be spelt out. 17. This provision would apply even if no request was made for a particular adjustment. This is concerning because without saying a word several months down the line the tenant/resident could complain and make a claim because something has not been done even though it has never been requested. Further, as already indicated, there appears to be no exception even for fundamental alterations, let alone changes to the structure of the premises. The on request regime means that any adaptations can then be made to meet the needs of the particular individual concerned and in consultation with them if they are reasonable. It is insulting and patronising to do these things without consultation. The disabled person wants to feel they have “ownership” of their property and the changes which are made to it. This is a highly personal issue and one has to be sensitive to their particular needs. Instead, everything is provided in advance. One would have the nonsensical situation that either a change which is specifically requested might be refused because the landlord has already made some kind of provision even though it is unsuitable or alternatively one has the significant expense and trouble of redoing things which have already been provided. 18. In any case there is serious concern in relation to carrying out physical alterations to existing buildings retrospectively. Existing buildings come in all shapes and sizes and are of differing ages and different construction. Making physical changes imposes enormous problems of a practical nature, as well as very significant cost implications. There are also concerns surrounding listed buildings and properties in conservation areas where there are planning restrictions on making alterations or even if they are permitted at the extra cost that will be incurred because of the nature of the premises. 19. The RLA is particularly concerned as to the narrowness of the only exemption. There is no exemption at all for physical alterations, let alone fundamental alterations. There is no qualification that the alterations required should even be reasonable. This could impose potentially huge liabilities and responsibilities on landlords. There is only the vague “disproportionate burden” exemption to which we refer later on. We look in more detail at the range of physical alterations which could be required when dealing with the anticipatory duty. The same considerations will apply in relation to this requirement in relation to specific disabled individuals. We maintain, therefore, that the specific individual duty should be qualified so as to exclude physical alterations (other than minor changes) along the lines of the current UK position. These strike the right balance. The reasonableness requirement should also apply. In the case of common parts we acknowledge that the proposed change to UK law contained in the Equality Bill again strikes the right balance on the basis that the person making the request has to meet the cost, that the work is only needed on a specific request and that request has to be reasonable. G. Article 4 – anticipatory duty 20. It is one thing to consider alterations to accommodate a specific disabled tenant or potential tenant for a particular property (so long as they are reasonable and do not necessitate physical alterations) but completely different to require changes to a property on a “just in case” basis. This is wasteful and imposes a grossly excessive burden especially as one cannot know in advance what particular item of work may be needed to cater for a tenant who in reality will probably never appear anyway! It is simply impossible to anticipate in this way in respect of someone’s home. Clearly, this will have a significant impact when refurbishing property or providing new properties to rent out. 21. There is then the related question of what parts of a property needing alteration. For example, is it every floor of a multi storey building. Is it every room within a dwelling whether that dwelling be a house or a flat in a block. Would a landlord comply just by making changes to the ground floor. In any case the accommodation on the ground floor may not be vacant at the time so it would not be available for a prospective disabled tenant. Taken to the extreme this will therefore suggest that all or at least the majority of the units in a larger building would need adaptation? Would it be sufficient if only a number of units in a block were altered? 22. One could potentially conceive a very large package of physical alterations which may be needed. Who knows “how big” a landlord has to be before he/she is affected? To retro fit these kinds of alterations into an existing building raises all kinds of practical issues, as well as the question of how much it will all cost. For instance, it could include:- (i) External ramp with rail. And so the list could go on ad infinitum. Such a list requires the expenditure of many many thousands of pounds. . 23. There are then questions of design e.g. the levels at which light fittings and electric plugs are fitted. Does every house/flat have to be kitted out in the same way as if it were disabled persons accommodation. The RLA is greatly concerned, therefore, with the huge costs which could result from this measure. 24. There are additional problems in relation to multi occupied properties where certain items have to comply with fire safety regulations. Changes to these will incur extra cost because the replacement items have to be compliant with fire safety requirements. 25. Aligned to this is the extreme difficulty of anticipating the individual needs of individual persons. How could one work these out in advance. It is wholly unrealistic to expect that this can be done. Hence the sensible nature of the existing UK provision that one looks at the specific needs of an individual as and when it happens and if they request changes. 26. One has to be realistic in that able bodied people have different requirements to the disabled. They do not want the same kind of features. For example, they want their plugs and sockets at different levels. This is just one example. The reality is that people would not want the same accommodation to house families and young children as they would want for the disabled. 27. There are two exemptions as identified above. The “disproportionate burden” exemption is dealt with below as it affects both the anticipatory duty and the duty in relation to specific individuals. 28. The other exemption is the “fundamental alterations” exemption. What is meant by “fundamental” in this context? The use of the word “fundamental” would suggest that only really major changes are excluded from the scope of the anticipatory duty under the Article so as not to be required. It must go beyond just an exclusion for simply physical changes. It, therefore, again amounts to a major departure from the existing UK position. It would seem to exclude from the ambit of the anticipatory duty only really major changes. Only the most extensive of physical alterations would be excluded in the case of anticipatory duty and the only exception therefore which could actually be relied upon, particularly for existing buildings, would be the disproportionate burden exclusion. The fundamental exemption is worthless. 29. There should be no anticipatory duty at all in relation to disability discrimination in the view of the RLA. H. Disproportionate burden – the exemption for both the anticipatory duty and specific individual duty 30. What is meant by yet another vague phrase such as “disproportionate burden”? Is it a financial concept or does it address the practicalities or for that matter both. Again, we have a complete lack of clarity. How does it relate to the accepted UK test of reasonableness? 31. When one looks at Article 2, which addresses what is meant by a disproportionate burden this is addressed only in general terms and only on an indicative/non exhaustive basis. There is no reference as such to physical alterations and their extent. There is, however, reference to “the life cycle of the goods and services”. Although it is not particularly apt to deal with housing presumably this might extend to housing and could, perhaps, be interpreted to include reference to the age of the building in question. This is very uncertain so why should business especially small business have to wait for this to be interpreted by the Courts? There is, however, no reference at all to the nature of that building its layout, its physical construction and so on. Can these factors be taken into account in determining what is a disproportionate burden? Again, this is not clear. As already stated linking housing with goods and services is clearly inappropriate. This is a wholly unsatisfactory way of legislating. Both disabled people and business are entitled to clarity and certainty. 32. It is essential that we address matters in terms of what is reasonable and the resulting burden could be looked at as part of the overall test of reasonableness as currently applies under UK law. All the various matters relevant to premises (both old and new) should be listed out so that they can be considered, although this needs to be done on a non-exhaustive basis. I. The consequences for the private rented sector 33. Article 4 in terms of the anticipatory duty would place very wide and 34. In terms of the proposed anticipatory duty under the Directive, as already pointed out, there is only an exception for fundamental alterations which seems to suggest that very extensive physical alterations could still be required even though they may never be needed. This is a wholly wrong requirement and a waste of resources. 35. When it comes to the issue of fundamental alteration this in itself raises issues. Is whether an alternative is fundamental determined by looking at the property in the round (i.e. the aggregate of the physical alterations which may be needed) or in some other way. Clearly, the larger the menu of alterations which might be needed the more fundamental the alterations might be. This is all very uncertain. 36. The disproportionate burden exemption begs so many questions as to its operation. It is vague in the extreme. We have dealt with this in detail above. J. Costs of Implementation 37. On behalf of its members the RLA is very concerned about the whole cost of this exercise. Both the anticipatory duty and the wide ranging need to make physical changes to buildings will cast a high cost on business. Very many landlords only have up to four properties. The disproportionate burden defence is uncertain. It does not provide any real protection at all. 38. In our section on physical alterations we have already looked at the significant number of changes which could result from this directive under both duties. Who is to meet this cost? In the view of the RLA it should not fall on landlords and tenants generally. Do not forget that the cost of all of these kinds of measures falls ultimately on the consumer (i.e. the tenant) by means of higher rent payment. This can also increase the burden on the public purse in relation to housing benefits/local housing allowance. 39. The RLA considers that where adaptations are required to premises then the cost should fall on the disabled person concerned. In our view they should only be required on request in any case to meet the needs of the specific disabled individuals. If need be, disabled facilities grants can then be made available to meet the cost on a non means tested basis. The costs should fall on society as a whole in this way rather than on tenants. The argument is often raised that if the landlord carried out these works then they will benefit from a larger clientele. They would then be able to cater for disabled people. That may have some merit in terms of access to shops, offices etc. In our opinion this will however not apply in the case of private rented sector. There is, in our view, little demand and, in particular virtually no demand for vastly modified accommodation. The whole cost should not, therefore, fall on the private rented sector and its tenants generally. K. Relationship of disability discrimination with age discrimination 40. There is the related concern regarding indirect discrimination based on age. On the basis that statistically elderly people are more likely to be disabled if one fails to provide these sort of facilities/amenities is one also guilty of age discrimination as well as disability discrimination? The practice of not providing various facilities would impact adversely on the elderly. Landlords therefore face a double whammy. This needs to be addressed. L. Age discrimination 41. As well as the impact on disability discrimination, the RLA is very concerned about how these proposals will work in relation to age discrimination. Certain developments are purpose built for the elderly, e.g. over 55s. Would they still be permitted. There is no specific exemption for them. Likewise, in terms of the under 18s UK law quite rightly recognises that children under 18 should be dealt with in terms of age discrimination law in a different way to adults. The EU directive would have no such exception and the RLA is very much opposed to extending discrimination law to the under 18s when it comes to age discrimination. Legally under English law it is very difficult to effect a binding tenancy with a minor anyway. 42. For perfectly good reasons for management a landlord may wish to prohibit children under 18. This will be because the premises themselves (e.g. flats) are simply not suitable. There may be no garden areas. The premises may be too high with balconies etc. These are all the very good reasons why, in terms of social housing, it was felt that tower blocks were undesirable for families. 43. A landlord may provide accommodation for young students. Their lifestyle is not conducive to having older people in the same property or the next door property owned by the same landlord. This can, in reality be termed beneficial discrimination. It is done in the best interests of property management. It should not be outlawed as this could happen if the directive were implemented. 44. When it comes to very young children again accommodation may be wholly unsuitable. It may be a small bedsit which is suitable for a single person but the facilities are not suitable for babies. M. Equality Bill 46. The RLA is very concerned about the potential impact of provisions in the Equality Bill following the Government’s decision to overturn the House of Lords Judgment in the Malcolm Case. Prior to the House of Lords Judgment possession proceedings were already being opposed in the social sector in reliance on disability discrimination legislation. This was normally the case where there was some mental problem. The same issues will be replicated if the EU Directive were to be adopted. 47. A cornerstone of the private rented sector is that landlords are entitled to possession if they can show that there is at least two months (broadly) rent arrears (relying on Ground 8 in Schedule 2 to the Housing Act 1988). Likewise, very importantly, on a no fault basis landlords are entitled to possession under an assured shorthold tenancy in reliance on Section 21 of the 1988 Act (assuming the fixed term of any tenancy has come to an end). Prior to the implementation of the Housing Act 1988, there was severe restrictions on obtaining possession pursuant to the Rent Act 1977 (which remains in force for certain properties where they were already subject to tenancies regulated by the Rent Act 1977). As a result of the Rent Acts the private rented sector shrunk dramatically. When properties became vacant they were sold. They were then lost to the rental market. Since the implementation of the Housing Act 1988 there has been a revival in the private rented market. However, the right to obtain possession in these two ways is absolutely fundamental and without it the private rented sector would be severely under threat to the detriment of tenants generally. There are of course other mandatory grounds contained in Part 1 of Schedule 2 to the 1988 Act as well as equivalent mandatory grounds in relation to Rent Act protected tenancies under the 1977 Act. This includes the right for the owner/occupier to repossess their property. 48. The Equality Bill will now provide that there has to be justification in order to obtain possession. In effect, the same would apply under the EU Directive. The RLA has major concerns as to what amounts to justification in these cases. It is a vague concept. Broadly one can divide the situations in to three categories (1) rent arrears (2) anti social behaviour (3) other tenancy breaches (e.g. sub-letting without consent which was the basis of the Malcolm Decision in the House of Lords). 49. Frequently, the landlord relies on Section 21 in cases of anti social behaviour; rather than relying on specific nuisance/annoyance ground which is only discretionary (i.e. the Court must also be convinced that the application is reasonable). Section 21 is, therefore, a very potent weapon in the anti social behaviour of tenants. Likewise, because of the no fault basis the landlord where he can tends to rely on Section 21 to deal with rent arrears cases and other breach of tenancy terms. HMO and Selective licence conditions require landlords to combat anti social behaviour affecting their private rented properties. The Equality Bill is putting up hurdles if the tenant is disabled and areas of the state is instructing landlords to take this action (with a threat of a £5,000 find) and another of erecting obstacles! 50. In terms of anti social behaviour it is possible but not always the case that the landlord will be able to justify an application for an order for possession because of the adverse effects on the health and welfare of others. 51. There is particular concern regarding rent arrears. Again, where possible, the landlord will rely on Section 21 but if he/she cannot do so then they can rely on the provisions of Ground 8 in Part 1 of Schedule 2 to the 1988 Act. As already indicated, the Court must order possession where there is a certain amount of rent arrears. What will amount to justification in these circumstances? In the RLA’s view the importance of the contract and the obligation to pay rent is sufficient justification but will this be the case either under the Equality Bill or the EU Directive. A landlord should not be compelled to provide on an ongoing basis a service for which the tenant is not paying, for whatever reason. The tenants in this situation should not be able to rely on disability to overcome their obligation to pay the rent in return for accommodation which has been provided for them. In the meantime a landlord may well be incurring debt of his own (e.g. his mortgage repayments). 52. Similar questions arise in terms of other breaches of tenancy terms. Again, what will be required to justify the obtaining of an order for possession in such circumstances. The proposed directive, and the Equality Bill, are unclear on this. 53. One has to realise that as a result of all of this there is a perverse effect. If a landlord believes that a tenant may be disabled in some way then he will find a way of not letting the property in the first place. It should be remembered that there is a body of landlords out there who are prepared to take on the more difficult cases. The imposition of restrictions of this kind against obtaining possession will bring about an end to this. Landlords will no longer be willing to provide this accommodation for the more difficult cases in society. N. Conclusion 54. As can be seen from our responses, the RLA is of the view that broadly speaking current UK discrimination law maintains the right balance in relation to reasonable adjustments to premises. 55. However, the RLA has major concerns, which it has already voiced to Government, regarding the consequences of the decision to reverse the outcome of the Malcolm case. This could have profound consequences for the private rented sector. A similar position will ensue from the draft Directive if it were to be implemented. The RLA strongly believes that the mandatory grounds for possession in relation to assured tenancies and regulated tenancies should override the provisions of the Disability Discrimination Legislation i.e. in relation to disability related discrimination, as it is currently termed. It is in the interests of tenants generally, that the supply of accommodation is maintained and the changes envisaged both by the draft Directive and the Equality Bill would very strongly militate against this. The landlord with a social conscience would rapidly change his attitude and make sure that he/she did everything to avoid having to take on a tenant who may be disabled or potentially disabled. Like it or not that is the reality. 56. The RLA must question why the Government is even supporting this Directive. We already have a well balanced developed law dealing with all kinds of aspects of discrimination. This is open to some criticism in certain areas in the ways in which housing legislation is affected. Nevertheless, we must seriously question why the EU has to legislate in this area and why the Government is supporting such legislation. Vague statements about mobility of labour bringing other countries in to line do not justify the need for such a directive. 57. It would seem that in this instance the UK is in a unique bargaining position. The draft Directive needs unanimous support from all EU member countries. 58. Surely the Government does not need reminding of the grave economic situation. There is already a huge regulatory burden heaped on the private rented sector. We are concerned about the drip/drip effect. The greater the burdens heaped on the sector and the greater the cost the less likely people are to provide accommodation. Those who will be disadvantaged as a result are the very people whom the Government says it is trying to help (i.e. the disabled along with the poor and others who need a good affordable supply of rented accommodation). 59. Quite rightly the German Government has objected to this directive, as no doubt do other countries in the EU. It is simply something that is not needed. If it is to be considered further it should only be with the significant changes which we have already referred to in our response to the Consultation Document. If you want to be kept up to date with the latest industry news, subscribe to RLA E-News by clicking hereRLA News Service
Response to the government’s consultation paper on the proposed EU directive on discrimination outside employment/vocational training
http://news.rla.org.uk/index.php/archives/468
Response to the government’s consultation paper on the proposed EU directive on Discrimination outside employment/vocational training
The Present position under UK Law relating to disability discrimination (prior
to the passing of the Equality Bill)
(b) There is no requirement to make physical changes to premises subject to minor exceptions. There are detailed regulations dealing with what does and does not constitute a physical change for these purposes. The Equality Bill will amend this in relation to the common parts but any adaptations would be at the expense of the disabled person.
(ii) Wider external doors.
(iii) Grab rails on corridors.
(iv) Blind friendly signage/Braille signage
(v) Wider internal doors throughout.
(vi) Stair lifts or other lifts.
(vii) Significant changes to bathrooms e.g. bath easily accessible, showers etc.
(viii) Complete redesign of kitchen layouts.
potentially costly obligations on landlords of private rented accommodation. Unlike the current position under UK Discrimination Law there is no exclusion for physical alterations; only fundamental alterations which is an entirely different concept. Existing UK law strikes a balance in that it does allow for certain minor physical changes but it recognises the practicalities and cost associated with physical alterations to buildings by excluding most physical alterations from the scope of the duty to make reasonable adjustments.
45. We are thrown back on the vague concepts of European law relating to pursuit of a legitimate aim. This kind of anti discrimination legislation can be very worthy in theory but it is an unjustifiable interference by the European Union in detailed issues of management which are far better dealt with at a local level to deal with the particular requirements of society in question as well as the types of property encountered locally. Whatever happened to the principle of subsidiarity?
Friday 31 July 2009
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