After a four-day hearing back in February 2019, The Hon Mr Justice Martin Spencer found that the Right to Rent scheme resulted in discrimination on grounds of nationality and/or ethnicity and the Secretary of State was responsible for this discrimination.
The Secretary of State appealed on six grounds during a hearing in January 2020.
The Joint Council case relied heavily on mystery shopping exercises which were examined in great detail by the appeal process. Concerns focused on the presentation of this evidence which the court believed was open to alternative interpretation.
Despite the criticisms made on behalf of the Secretary of State and my observations above, on the basis of all the evidence, I am satisfied that, as a result of the Scheme, some landlords do discriminate against potential tenants who do not have British passports, and particularly those who have neither such passports nor ethnically-British attributes such as name. By "as a result of the Scheme", I mean that, but for the Scheme, the level of discrimination would be less. Almost all of the evidence – notably the evidence from mystery shopping exercises and surveys – points clearly in that direction.
While the ruling details do acknowledge concerns around discrimination, the scheme was found to be lawful and not the cause of unlawful discrimination.
This legislative scheme has a legitimate policy purpose. It is consistent with the 2002 Directive. It preserves remedies under the Equality Act 2010. It was fully debated and consulted on in all relevant respects, including discrimination, before being brought into effect. It is well-established, indeed essential, that a margin of appreciation or judgment should be accorded to the legislature of states in this sort of case. That is why such a measure ordinarily must be shown, in such a context, to be “manifestly without reasonable foundation”, before the courts will interfere.
What does this mean for Right to Rent checks now?
Arrangements for making and recording Right to Rent checks, including those necessary for follow-ups and to facilitate tenancy renewals, all need to continue under lockdown conditions in line with temporary arrangements.
As restrictions on movement are lifted, agents need to return to the checks that have been undertaken and repeat them according to pre-lockdown guidance.
Temporary measures for Right to Rent checks
After Propertymark’s campaign to #KeepTheRentFlowing, which included lobbying Government to suspend or amend Right to Rent checks during the COVID-19 breakout, last night, changes were made to ensure checks can continue.
