...free to think freely


7th September 2021

Children and Protected Categories

Owing to unfortunate circumstances I need not address here, I am intimately connected with a single mother’s search for accommodation for her disabled son and herself. She claims Universal Credit for herself and her child as his disability precludes her working. Unlike someone looking for work who would be subject to the Benefit Cap, a person claiming benefit because disability genuinely prevents them being able to work can receive a substantial amount, equivalent to quite a skilled salary. In this case, that could be enough to provide 2.5 times rent cover on a fairly reasonable house in the area.

That should be good news, as it means this small family should have no difficulty finding a house. Of course, it isn’t, though, because many, maybe most private landlords operate a “no pets, no children, no benefits” policy.

Leaving aside the pets, because a dog or a cat does not enjoy legal or moral rights to housing, and concentrating on the other two restrictions, shows again the inadequacy of category-based equality legislation. It so happens that neither economic status nor youth amounts to a Protected Category except, for the latter, in the field of employment.

There are good reasons for this. Giving these categories protected status would prevent reasonable protections being applied to them. People acquire many of their legal rights at different ages: the right to drink in a pub, the right to marry, the right to apply for licences for potentially dangerous activities like driving are acquired in later teens and denied to children because children would normally lack the capacity to exercise them wisely. We restrict children’s activities for their own safety and that of the public. Children are not free to decide how they will spend their time – they must go to school (or an equivalent) by law and they must obey their parents or guardians at other times. Giving children Protected Category status would need an endless list of exceptions to be applied, reducing the protection to very little. Yet, given housing is a basic need and children need it as much as adults, it seems perverse that landlords can refuse to let to families including them.

There are, of course, properties which would be unsuitable, or even dangerous, for children. Houses in Multiple Occupation (HMOs) mean both other tenants would be unable to escape from children in communal rooms and the children could not be guaranteed safety from tenants who are unrelated to them and could have undesirable tendencies. Would it be reasonable to require tenants in HMOs to have an enhanced DBS clearance to rent a room? What about naughty or otherwise annoying children disturbing frail tenants? It is easy to see HMOs might be unsuitable for children. Other properties might be dangerous to children because of architecture or layout. I might think of mezzanine bedrooms or certain kinds of ladders or staircases which could be a hazard. So a universal rule insisting all properties must be available to families with children could have undesirable consequences. That is a shortcoming of a category-based approach to rights legislation.

When it comes to the other ban, on benefit claimants, things become even more complicated. The reason behind this is twofold. Firstly, landlords fear benefits denote a low income and might not be sufficient to cover the rent. However, that situation should be dealt with by the normal requirement for income to exceed rent by a certain proportion. Benefits are not really different from other income in that sense. They could be argued to be more assured; a good job could vanish at a month’s notice the day after the rental agreement is signed, whereas benefits are paid by the Government as long as they are needed. Which is more precarious?

The other concern landlords might have over benefit payments are the reliability of claimants versus employees. It is probably true that unreliable or anti-social people are less likely to be able to keep jobs, more likely to be unemployed, and therefore more likely to be on benefits than better-behaved types. That makes the converse true: benefit claimants are more likely to be unreliable or anti-social. However, that doesn’t mean they all are. It might be a valid calculation for people seeking work, especially if continuing in that state arises from poor references, but the reason someone is on benefits should be taken into account. Indeed, if that reason relates to a Protected Category, by law it must be though, sadly, that law is often ignored. To deny someone consideration for a house because they are on benefits solely because they are or care for a disabled person is to discriminate against them because they are, or are associated with, someone with a disability. However, if a person receives benefits because they cannot work for some other reason, they might not have that protection at all.

A law which tries to provide fair treatment on the basis of people belonging to specific categories is clearly oxymoronic. Far from achieving fairness, it privileges those who happen to fall under its protection and leaves others as unfairly treated as ever. Moreover, it does not enable the subtler judgements relating to finer details of a person’s circumstances to be taken into account. If a person falls into a Protected Category they gain protection against much scrutiny, because any aspect of a negative judgement which could be related to the category becomes impermissible, whereas others can be treated with blatant prejudice because they are unprotected. Moreover, it cements “Identity Politics’ into the legal system so equality of all before the law is replaced with protections for some if they can claim membership of certain specific groups. There is something perverse about a society which considers protecting certain Identity Political memberships more important than housing vulnerable children.

The case for fairness and equity legislation to be based on principles of conduct rather than categories is overwhelming, but instead those who demand it are overwhelmed by the demands of those who like dividing people up.