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Step 2: Check what discrimination arguments you have

This advice applies to Scotland

Coronavirus - protection for tenants

The Scottish government has introduced measures to protect renters. If you're behind with your rent, your landlord can't evict you unless they give you six months' notice. Your landlord must still follow the correct legal procedure in the courts.

Read more about what to do if you have rent arrears.

If you're a private-sector tenant, your landlord must go to the First-tier Tribunal to get an eviction order. The tribunal must consider if it's reasonable to evict you in the circumstances.

Hearings that were postponed because of coronavirus resumed from 9 July 2020.

Get the latest information about evictions on the Shelter Scotland website.  

You can use discrimination law arguments to defend your eviction in addition to housing law defences.

In some cases you might not have housing law arguments because the law allows the landlord to evict you for certain valid reasons.

For example, if you’re:

  • a short assured tenant and your landlord is evicting you with a valid Notice to Quit and section 33 Notice at the end of the initial term of the tenancy agreement, usually 6 months

  • an assured tenant and your landlord has used a 'mandatory possession ground', like the landlord wants to live in the property.

In this case, even if you don’t have a housing law argument you might be able to defend your eviction using discrimination law alone.

Check your problem is covered by discrimination law

The first thing to check is whether 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 linked to your disability (discrimination arising from a disability)

  • your landlord is evicting you because you challenged discrimination before, including asking for reasonable adjustments (victimisation) - check what counts as victimisation 
  • the reason for the eviction action is connected with the 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

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

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

If your problem is discrimination you can try to stop the eviction - you might also be able to get compensation in the process or take a separate claim for compensation, depending on your tenancy type.

You’ll need to gather as much evidence as you can to show what happened and that it was discrimination under the Equality Act 2010. You might also need to show why their decision to evict you and any other steps involved in trying to evict you is discrimination. If you don’t have much evidence it can be hard to win your case.

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

Think carefully about how you talk to your landlord and other tenants in the early stages of building your case. Staying calm and civil can make it easier to get the evidence you need and you might be more likely to reach an agreement out of court. 

Building your discrimination argument

Your argument depends on the type of discrimination. It might be 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’. If you haven’t already you can check if your problem is discrimination arising from a disability.

The discrimination will be deemed legal if your landlord can show they have 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. The landlord could argue that a legitimate aim is:

  • the health and safety of other people, such as other tenants

  • 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. Perhaps your landlord could have solved the problem without evicting you and that discriminates against you less. For example that they could have given you help or advice or tried to negotiate with you first.

You could try to show that their aim wasn’t legitimate and/or isn’t proportionate.

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.

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 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.

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 disadvantage.

The discrimination will be deemed legal 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.

Your argument will be stronger if you can think of a way of meeting the legitimate aim that discriminates against you less. For example they might have been able to change a rule or given you extra help to follow them.

If you’re not sure if the discrimination is justified, get help from an adviser

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 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.  

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 if you can prove your landlord has discriminated against you - this is called making a ‘counterclaim’. If the landlord is evicting you for rent arrears, the compensation you get might pay off your debt and mean you can stay in your home.

If you're a public tenant and being evicted through the sheriff court, this is called making a ‘counterclaim’. You can try to 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 to the eviction.

You can only make a counterclaim in the sheriff court, not the First-tier Tribunal (and only if the sheriff allows you to). Private tenants will need to raise a separate claim for discrimination compensation in the sheriff court. 

A deadline applies to this. The deadline for starting a compensation claim 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.

If the discrimination happened more than once and the incidents are linked, you have 6 months less 1 day from the last time the discrimination happened.

If you miss the deadline to make a separate claim, you might be able to make a claim if the court thinks it’s fair to both sides - this is known as ‘just and equitable’.

Example

Charlotte is being evicted for rent arrears - she owes her landlord £1,000. Over the last few months a housing officer from Charlotte’s council (her landlord) has been making her feel uncomfortable by making sexual comments towards her.

One of Charlotte’s neighbours overheard some of the comments, so Charlotte can prove that her landlord has been harassing her because of her sex.

Charlotte makes a counterclaim against her landlord at her eviction hearing. The court accepts her proof 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, and she can stay in her home if she wants to. 

If the reason you haven’t paid rent 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 so they can run their properties.

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.

Your argument will be stronger if you can think of a way of meeting the legitimate aim that discriminates against you less.

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. Read our advice for paying off rent arrears

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’. Asking for reasonable adjustments because of your disability is one type of protected act under the law. Detriment means you’re worse off, which includes eviction. So 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. Victimisation is covered in section 27 Equality Act 2010.

Gathering evidence

Once you’ve decided what arguments you can use, you’ll need to gather evidence of the discrimination.

If there's evidence that you need but you don't have, you might need to ask the landlord for this. If you’re a council or housing association tenant your housing file can be important evidence as it’s a record of events and any complaints you’ve made or reasonable adjustments you’ve requested. It may also have a record of any complaints made against you.

You should write to the landlord asking for a copy of your file. Sign and date the letter and send it by recorded delivery. Keep a copy of your request. If they don’t provide it, try phoning the landlord and refer back to your first request. If they don’t give you a copy you can ask the court to make an order forcing them to give it to you.

Check an example application to recover a housing file

Check how strong your case is

You should assess how strong your case is and reconsider this when you get any evidence from the other side.

You should make sure that you:

  1. have identified your legal rights
  2. show how those legal rights have been breached
  3. know the elements that must be established to prove you’ve got a legal right - this is different for each type of discrimination so check if you’re not sure.

You should write down the different elements of the case and add the facts that you have to support them. You can then write down whether you have any evidence to support those facts - like an email saying why you’re being evicted.

Doing this will also help you work out what extra evidence you might need to get to be able to prove your case and identify any gaps or weaknesses in your case.   

If you’re claiming more than one type of discrimination

You’ll need to do this for each one. Sometimes you'll be able to use the same evidence to show the different types of discrimination.

Check if there’s any defence to the discrimination

Once you’ve matched the evidence you have to the elements of each type of discrimination, you should check whether your landlord, property manager or controller will try to defend the case even if you can prove that the discrimination happened.

For indirect discrimination and discrimination arising from disability they could say that the action is justified as it is a ‘proportionate means of achieving a legitimate aim’.  

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

For reasonable adjustments they could say it’s not ‘reasonable’ or that they don’t have to make the adjustments you’ve asked for. Reasonable adjustments are covered by sections 20, 36 and Schedule 4 of the Equality Act 2010.

You should think about anything that will weaken their argument, for example if there’s a less discriminatory way to achieve their aim or if their reasons have been inconsistent so don’t seem credible.

If you identify gaps in your evidence or you think having looked at your evidence and that of your landlord, property manager or controller that they have a stronger case you might decide to gather some more evidence and then reassess your case.

Check how strong your evidence is

You don’t always need to have lots of evidence to have a strong case - it’s usually more important that the evidence is of a good quality.

Strong evidence could include evidence that is:

  • from someone who witnessed the discriminatory incident

  • from someone who isn’t linked to either party

  • factual

  • put together at the time or soon after the incident

If you’ve received a copy of your housing file, read it carefully. Note down anything that seems incorrect or doesn’t agree with your other evidence.

If you’re a public tenant defending an eviction in the sheriff court you should be aware that if you have lots of evidence and/or witnesses to support your case the sheriff may call a separate hearing called a ‘proof’ where your evidence is examined. It’s best to get a lawyer to represent you at a proof because the rules of evidence are complicated and if you don’t follow them some of your evidence might not be allowed. The main rules of evidence are in Chapter 8 of the Summary Cause Rules on the Scottish Courts website.

Be careful about making claims or relying on incidents that you don't have evidence to support - there is a risk that you might have to cover some or all of the other side's costs if you've wasted court time because your claim wasn't very strong or was bound to fail. There is also risk that it could distract the court’s attention from your stronger arguments. Get help from an adviser if you need help to do this.

If you don’t think you have any housing or discrimination defences

You should get help from a lawyer or an experienced adviser. They might be able to identify an argument you haven’t seen. A Citizens Advice Bureau can also give you advice on maximising your income, looking for alternative places to live or even making a homelessness application to the council. 

If you're at risk of being made homeless within 2 months you can make a homelessness application to the council. Read more about making an application

Example

This example shouldn’t be used when you're defending your own eviction. You must get legal advice for your particular circumstances and type of tenancy. Getting advice if you are threatened with eviction is very important – you could lose your home if you don’t defend the eviction or don’t understand the legal proceedings.

PDF version

The PDF file will open in a new window. 

Example of application to recover a tenant’s file from the landlord [ 71 kb]

Accessible online version

If you can’t access the document you can see this version, but this may not reflect the formatting the court or tribunal uses. If you don’t use the correct format, your case could be affected negatively. You can get help from your nearest Citizens Advice or a lawyer if you’re worried about formatting your document.

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