Deciding what to do about housing discrimination
The Equality Act 2010
If you haven’t already checked, make sure your housing problem is covered by the Equality Act 2010 before you take any action - check if your problem is discrimination.
If you’re being harassed, it might be discrimination under the Equality Act 2010. Check if your harassment problem is covered by the Equality Act.
It might be best to try and solve your problem by complaining first. If this doesn’t work, you can still take court action.
Start gathering evidence as soon as possible. Keep any messages about the problem and write some notes of what happened. If you’re renting privately, be careful about asking your landlord for evidence as they might decide to evict you.
Before you can solve the problem you’ll need to:
- check the deadlines for taking action
- decide what outcome you want
- decide whether to complain or take legal action
If you’re being evicted because of discrimination, your options are different - check what to do about an eviction.
If you take action about discrimination and are treated unfairly because of it, it's called 'victimisation'. You're protected by the law and can add it to your existing claim.
You can get help with deciding how to deal with your problem from an adviser - they can help you build a stronger case.
Check the deadlines
Act quickly because there are strict time limits for taking legal action. The deadline for starting legal action is 6 months less 1 day from the date you were discriminated against.
To start legal action for compensation under Simple Procedure or Ordinary Cause you need to have submitted a claim to the sheriff court and had the claim ‘served’ on the other side within 6 months less 1 day from the date you were discriminated against.
‘Service’ is a formal legal process where the respondent is sent a copy of the claim form by a legal agent, such as a solicitor or sheriff officer. It’s usually delivered by recorded delivery or in person. It’s used so that the respondent knows legal action is being taken against them and can’t use not knowing about the claim as a defence. In Simple Procedure, you can ask the sheriff clerk of the court to organise formal service for you.
For example if you were discriminated against on 13 July, you need to make sure the claim has been served on the respondent by the end of the day of 12 January.
If your deadline falls at the weekend a bank holiday or court holiday, you'll need to make sure the claim has been served on the respondent by the end of the last working day before the deadline.
You need to have prepared your claim with time to spare to allow formal service to happen.
The date you were discriminated against could be when someone:
- made a decision - for example the date your landlord refused your request to make a reasonable adjustment
- discriminated against you by refusing to rent a property to you
If you have more than one claim, you might have different deadlines for each one. Check all the dates you were discriminated against and work out the deadlines for each claim.
If you decide not to take legal action straight away, you should still complain as soon as you can. It means you’ll still be able to take action if you can’t resolve the problem by complaining.
If you asked for reasonable adjustments it can be hard to work out the date to start counting from. Check how to work out time limits for reasonable adjustments.
If you’ve missed the deadline
If you’ve missed the deadline, you might still be able to make a late claim if the court thinks it’s fair - this is called being ‘just and equitable’. They might consider things like the reason for the delay, the length of the delay and the effect of a late claim on the other side.
You shouldn’t rely on this though as the court might decide not to allow you to make a late claim.
Act quickly as this will give you a better chance of the court accepting your claim. Check what to do if you’ve missed the deadline.
The court’s power to allow a late claim is in section 118 of the Equality Act 2010.
If you have been discriminated against more than once
You’ll need to work out whether the different incidents could be classed as ‘continuing’ over a period of time. This is where they’re linked to each other, for example if your landlord uses homophobic language to describe you on several occasions or continue to apply a discriminatory policy to you.
If the incidents are linked, the law calls them a 'continuing series of acts' or a 'continuing act' and time only begins to run when the last act is completed. This is covered in section 118(6)(a) of the Equality Act 2010.
If the incidents aren't linked, you’ll need to make separate discrimination claims with different deadlines. For example if your landlord made a racist comment and the letting agent made a sexist comment, they might not be the same continuing act. You should then use the earliest date as your deadline.
- the last incident is definitely discrimination - if it’s not and this means you made a late claim, the court could reject your case
- there’s a long gap between the different incidents - if they’re far apart, they might not be one continuing act
If you’re not sure of the date, it’s usually best to use the earliest date. If you use a later date for the deadline, the court could decide that the later incident wasn't discrimination or that the acts weren't linked and you wouldn’t have time to make a new claim.
If you’re close to the deadline
If it's nearly 6 months since the problem happened or last happened, you could take legal action straight away without complaining first. You can continue to talk to the other side at the same time to give you an opportunity to reach a settlement.
Decide what outcome you want
Think about what you want to happen. You might be able to get:
- an apology
- a reasonable adjustment made to your home, for example a change to the taps or door entry system
- the discrimination to stop
- a refund, for example if you paid a landlord for something but they didn’t do it
- compensation, for example if you’ve lost money or been stressed or upset
- changes to a policy or practice that will that stop the problem happening again, or happening to someone else
Deciding what action to take
The main options are complaining or taking legal action. It can be best to complain first and then take legal action if complaining doesn't solve the problem.
It can be stressful and take a long time to resolve a discrimination problem.
Think about how much proof you have of the facts in your case and how strong your case is. If you take legal action the court will need to be satisfied that each element can be 'established on the balance of probabilities’ - this means that it’s more likely than not.
If you don't have much evidence or your evidence is weak, it can be hard to win your case. You should also think about any evidence the other side might have that could weaken your case.
Once you’ve gathered your evidence, you should check again how strong your case is.
Going to court
It will usually take months to resolve a problem if you go to court. You’ll need to make sure you meet all the court’s deadlines too.
It can also be expensive, but you might be able to get help with legal costs.
If you take legal action you’ll have costs like:
- a fee to lodge the claim with the court
- paying to have the claim served on the respondent
- extra costs during your case - this will depend on the circumstances of your case
- solicitor’s fees, if you’re using one
- the other side’s legal expenses, if you lose
How high the costs are depends on what you’re asking for and what court procedure you’re using - Simple Procedure or Ordinary Cause. If you’re only asking for compensation up to £5,000, you’ll use Simple Procedure. You don’t have to use a solicitor for Simple Procedure so costs can be lower. If the claim is under £3,000 and you lose, the amount you can be ordered to pay towards the other side’s legal expenses is capped. You might also qualify for an exemption from court fees if you’re claiming certain benefits. If you lose, the amount you might have to pay for the other side’s legal expenses are capped. Check the costs of civil legal action under the simple procedure.
If you’re asking for more than £5,000 in compensation you’ll need to take action under Ordinary Cause. You start the claim by lodging an initial writ, which costs £127. Cases under Ordinary Cause are generally more complicated so you’re likely to have extra costs during the case and to have to pay fees for a solicitor to prepare your case and represent you. You might qualify for civil legal aid to help with this. You can also ask the other side to pay your expenses if you win, although they can do the same. If you lose, the legal expenses you’re ordered to pay could be high.
If you’re thinking of taking legal action, it's a good idea to discuss it with an adviser - check where to get help.
If you’re renting
It's a good idea to check your tenancy type to see how easy it is for your landlord to evict you. Some landlords might try to evict tenants who complain, even though it’s illegal.
Check your tenancy type if you rent from a private landlord - if you’ve got a private residential tenancy it’s harder for your landlord to evict you.
Check your tenancy type if you rent from the council or a housing association - you’re usually safer from eviction if you rent from one of these.
Talk to an adviser if you're worried about being evicted for making a complaint.
If you want to stay in the home while you take action, it might be best to try solving the problem informally first. This is because it might make the atmosphere uncomfortable or awkward.
Work out how much your case is worth
You might be able to get compensation for:
- any money you’ve lost because of the discrimination
- the emotional impact of the discrimination, like for stress - this is called ‘injury to feelings’
- a personal injury
You can get different amounts for ‘injury to feelings’ - depending on how serious the discrimination is.
In some indirect discrimination cases, the court has to consider other ways of solving your problem before they consider compensation. For example, they might order your landlord to change a policy so that it isn’t discriminatory. The rules on this are in section 119 of the Equality Act 2010.
You can work out how much your case is worth in more detail. It’s best to do this early on because it will affect which court procedure you use, if you decide to take legal action.
Think about negotiating
It’s a good idea to keep speaking to the other side once you’ve taken action. You might be able to negotiate and reach an agreement with them.
You can negotiate even if you’ve sent a formal complaint or started legal action.
You could also use a mediator to help solve the problem. This is an independent person who’s trained to solve disagreements. You can look for a mediator on the Scottish Mediation Register.
If you decide to take court action, it’s best to be able to show the court you tried to deal with your case outside of court.
You’ll need to gather evidence to help you when you take action.