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Preparing to challenge your eviction if you've been discriminated against

This advice applies to England

Before you take any action you need to make sure your discrimination problem is covered by the Equality Act.

You might be able to stop your eviction if:

  • your landlord is evicting you because of a protected characteristic (direct discrimination)
  • your landlord's eviction process puts you and people with your protected characteristic at a particular disadvantage (indirect discrimination)
  • the reason for the eviction is because of something connected to your disability (discrimination arising from a disability)
  • the reason you’re being evicted is connected with your landlord’s failure to make a reasonable adjustment - for example they refused to make an adjustment to the way you pay your rent and because of that you got into rent arrears
  • your landlord is evicting you because you challenged discrimination before, including asking for reasonable adjustments (victimisation) - check what counts as victimisation

You might also able to stop your eviction if you’re being evicted because you owe rent, but your landlord has also discriminated against you. You could tell the court about the discrimination and ask that any compensation you get goes towards the rent you owe - this is called a 'counterclaim'.

The legal name for stopping an eviction is ’defending a possession claim’. 

The law that protects you against eviction because of discrimination from landlords or property managers is in section 35 of the Equality Act 2010.

To defend the claim you’ll need to be able to show what happened and that it was discrimination under the Equality Act 2010. You might also need to show why the landlord’s decision to evict you and anything else they do involved in trying to evict you is discrimination. You’ll have to give this evidence to the court later.

Evidence could be things like letters from a doctor showing you have a protected characteristic, social media messages or witnesses who saw what happened.

If you haven’t got an eviction notice yet

Think carefully about how you talk to your landlord and other tenants about the discrimination. Your landlord might react badly if you threaten to take them to court and they could try to take action against you more quickly. If you’re calm and polite you’re likely to get better results.

As well as arguing you've been discriminated against, you might also be able challenge the eviction for other reasons. For example, your landlord might not have used the right process to start the eviction.

Check if you can challenge the eviction in other ways

There are other defences under housing law that everyone can use, whether they have been discriminated against or not. For example, that the landlord didn't use the correct procedure to evict you or in some cases if the action they're taking is unreasonable. You can then add your discrimination arguments to these.

You first need to check the rules on eviction that apply to your type of tenancy and how your landlord is trying to evict you.

If you live in a council or housing association home you need to check your eviction notice is valid and check other ways to challenge your eviction.

If you live in a private rented home, the first thing you should do is:

If you have a different type of eviction notice you might still be able to use discrimination to try to defend it, but you should get help from an adviser.

Even if you don’t have a defence using other housing laws you might be able to defend your eviction using discrimination law. For example you might be able to defend your eviction if you’re:

  • an assured shorthold tenant and your landlord has used a section 21 notice
  • a secure or assured tenant and your landlord has used ‘mandatory possession grounds’
  • a starter tenant with a housing association
  • an introductory tenant
  • a demoted tenant
  • sub-letting your home

Building your discrimination argument

Your argument depends on the type of discrimination. It might count as more than one type - for example it could be both ‘direct discrimination’ and ‘discrimination arising from a disability’.

If it was more than one type of discrimination you'll need to include them all. Sometimes you'll be able to use the same evidence to show the different types of discrimination. For example, you might be able to use the same facts and evidence to show a claim of discrimination arising from disability as well as a failure to make reasonable adjustments.  

You should mention all the types of discrimination you’ve faced when you challenge your eviction, but for some situations there are specific tactics you can use. Check the tactics that apply to you.

Get advice if you’re not sure what discrimination arguments you can use.

If it’s discrimination arising from a disability

You’ll have to show the reason you’re being evicted is connected to your disability - the legal term for this is being ‘treated unfavourably because of something arising in consequence of your disability’.

The discrimination will be allowed if your landlord can give a good reason for treating you this way. 

To have a good reason, they have to be able to show that the way you were treated is a ‘proportionate means of achieving a legitimate aim’. There are 2 parts to showing this.

Firstly, they have to show the aim is legitimate. A legitimate aim could be:

  • the health and safety of other people

  • making sure their business can run properly  

  • making sure neighbours aren’t disturbed too much

Secondly, their behaviour also has to be proportionate - this means they can’t discriminate any more than they need to. If there are better and fairer ways of doing things, it will be more difficult to justify discrimination.

For example, instead of evicting you they could have given you help or advice to sort out your finances or tried to negotiate with you first.

If you haven’t already you can check if your problem is discrimination arising from a disability.

Example

Mitch got a claim for possession letter from his landlord - he’s being evicted for antisocial behaviour. Some neighbours had complained that he was constantly shouting and swearing at them.

Mitch has Tourette’s syndrome, which means he can’t stop himself from shouting and swearing sometimes.

Mitch goes to his possession hearing in court and explains that his behaviour is caused by his Tourette’s syndrome, so he’s being evicted because of something connected to his disability.

The landlord says they had to evict Mitch because his behaviour was upsetting his neighbours. The landlord’s aim is legitimate because it’s about protecting Mitch’s neighbours.

The court says the landlord's actions weren't proportionate because they knew about Mitch’s disability, and could have negotiated with him and the neighbours first.

The court agrees with Mitch that his eviction was discrimination arising from a disability. The court dismisses the landlord’s claim and Mitch can stay in his home.

You can use this defence:

  • if your landlord has given a legal reason in their claim against you (these reasons are called ‘grounds for possession’)
  • where they haven’t given a reason but the actual reason they are evicting you is something connected to your disability

Discrimination arising from a disability is covered in section 15 of the Equality Act 2010.

If your landlord also failed to make reasonable adjustments for your disability

You can mention this along with the discrimination arising from disability when you go to court. You should try to show how their failure to make the adjustments led to them evicting you.  

The duty to make reasonable adjustments is covered in sections 20, 21, 36 and Schedule 4 of the Equality Act 2010.

If it's indirect discrimination

You might be able to show that the eviction is unfair because it puts people with a protected characteristic at a particular disadvantage.

The discrimination won't be against the law if your landlord can justify that the treatment is for a good reason. 

To have a good reason, they have to be able to show that applying the provision, criterion or practice is a ‘proportionate means of achieving a legitimate aim’. There are 2 parts to showing this.

Firstly, they have to show the aim is legitimate. A legitimate aim could be:

  • the health and safety of other people

  • making sure their business can run properly

  • making sure neighbours aren’t disturbed too much  

Secondly, their behaviour also has to be proportionate - this means they can’t discriminate any more than they need to. If there are better and fairer ways of doing things, it will be more difficult to justify discrimination.

For example, instead of evicting you they might have been able to change one of their rules or given you extra help to follow them.

Example

Cam is being evicted for rent arrears - she’s been falling behind with her rent and the amount she owes keeps going up.

Cam makes an offer to her landlord to start paying £5 extra on her rent every week to eventually clear her debt. The landlord refuses because Cam hasn't followed their process for people who owe money. This is for tenants to fill in a complicated statement explaining all their finances.

Cam has a learning difficulty that makes it difficult for her to read and understand things. She isn’t able to understand and fill in the statement.

Cam goes to her eviction hearing and tells the court that her landlord’s rule is indirect discrimination against disabled people. As a disabled person who has trouble reading and writing, she’s at a particular disadvantage compared to someone without a disability.

Cam says the eviction also counts as discrimination arising from a disability because she’s being treated less favourably because of something connected to her disability.

The landlord says they have to get people to fill in the statement so they can make sure they won’t lose money. The court says this isn’t a ‘proportionate means of achieving a legitimate aim’ because the landlord could have accepted Cam’s offer without her filling in the form. They also could have helped her to fill it in.

The court agrees with Cam and says that the eviction is against the law because the landlord's rule puts someone in Cam's position at a particular disadvantage compared to someone without her disability. The court says  it was indirect discrimination and discrimination arising from a disability.

If your landlord also failed to make reasonable adjustments for your disability

You can mention this along with the indirect discrimination when you go to court. You should try to show how their failure to make the adjustments led to them evicting you.  

If you haven’t already asked your landlord for the reasonable adjustments, you should do it now.

The duty to make reasonable adjustments is covered in sections 20, 21, 36 and Schedule 4 of the Equality Act 2010.

If you’re being evicted because you owe your landlord rent

You might be able get compensation to go towards the rent you owe if you can prove your landlord has discriminated against you - this is called making a ‘counterclaim’.

You can make a counterclaim even if the discrimination was separate to the eviction itself. It will be up to the court whether they'll allow the claims to be heard within the same case.  Make sure you include it at the same time as you do your defence.

If your landlord’s original possession claim was based on your rent arrears, the compensation you get might pay off some or all of your debt.  This might mean you can stay in your home - this is called a ‘set off’.

If the compensation only partly clears your rent arrears the court will continue to look at your landlord’s claim and decide whether you can stay in the home.

Example

Charlotte’s landlord has started court action to evict her for rent arrears - she owes her landlord £1,000. Over the last few months Charlotte’s landlord has been making her feel uncomfortable by making sexual comments towards her.

One of Charlotte’s neighbours overheard some of the comments and is willing to come to court to be a witness.  Charlotte can use this as evidence to help prove that her landlord has been harassing her because of her sex.

Charlotte makes a counterclaim against her landlord at her possession hearing. The court accepts her evidence that she was harassed by her landlord, they award her enough compensation to wipe out her £1,000 debt.

The compensation means that Charlotte doesn’t owe her landlord money anymore so the court decided not to make a possession order. This means Charlotte doesn't have to leave her home if she doesn’t want to.

If the reason you haven’t paid is to do with your protected characteristic

You might be able to stop the eviction if it’s indirect discrimination or discrimination arising from a disability.

If the reason you haven’t paid your rent is connected to your protected characteristic, your landlord’s decision to evict you could be discrimination. Your landlord might argue that they have a good reason for their decision. For example they might say that they need the rent to be paid in full and on time so they can run their properties. 

To have a good reason, they have to be able to show that the way you were treated or the way that they have applied a provision, criterion or practice to you is a ‘proportionate means of achieving a legitimate aim’. There are 2 parts to showing this.

Firstly, they have to show the aim is legitimate. A legitimate aim could be:

  • the health and safety of other people

  • making sure their business can run properly  

  • making sure neighbours aren’t disturbed too much

Secondly, their behaviour also has to be proportionate - this means they can’t discriminate any more than they need to. If there are better and fairer ways of doing things, it will be more difficult to justify discrimination.

You can suggest other ways to solve the problem. For example your landlord might be able to:

  • help with a benefits claim which will help you pay the rent
  • make an agreement with you for how you’ll pay your rent arrears
  • give you more time to pay
  • do something to make you more likely to remember your payments in future

You’re legally required to pay rent, so try to sort out any problems that mean that you can’t pay, and start paying as soon as you can. This will usually give you the best chance of staying in your home.

Indirect discrimination is covered in section 15 of the Equality Act 2010. Discrimination arising from disability is covered in section 19 of the Equality Act 2010.

If you asked for reasonable adjustments, and now you're being evicted

This could be ‘victimisation’. The law says it’s victimisation if you are ‘subject to a detriment’ because you’ve done or might do a ‘protected act’. A detriment means if you’re worse off. Asking for reasonable adjustments is an example of a protected act. This means if you're evicted because you asked for reasonable adjustments, it would be victimisation. 

You have to be able to show that the eviction is because of your reasonable adjustment request, or that it was one of the reasons.

If you challenge your eviction in court, your landlord will have to show that the reason is nothing to do with you asking for reasonable adjustments. 

There are special rules about the “burden of proof” in section 136 Equality Act 2010.

Victimisation is covered in section 27 Equality Act 2010

If you’re not making a counterclaim

You might be able to get compensation for any discrimination you’ve experienced from your landlord. You’ll need to treat this separately to your eviction - you can read more about deciding what to do about housing discrimination.  

Next steps

Once you’ve decided what arguments you can use, you’ll need to gather evidence of the discrimination before you fill out your defence form.

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