The Equality Act 2010: will it help the [Case A]ged?

Certain Agricultural Holdings Act 1986 (“AHA”) tenancies granted by a smallholdings authority or ‘the Minister’ between 12 September 1984 and 31 August 1995 can potentially be terminated by the service of a Case A notice to quit once the tenant reaches the age of 65. In light of the protection afforded by the Equality Act 2010 (“Equality Act”), we consider whether a tenant could challenge such a notice to quit on the basis that it unlawfully discriminates against tenants over the age of 65, contrary to the provisions of the Equality Act.

The right for a smallholdings authority to serve a notice to quit under Case A is conferred by Schedule 3, Part I of the AHA, which sets out the relevant conditions which apply. More information on Case A notices to quit, including frequently encountered difficulties and possible solutions can be found here.

Case A applies specifically to tenants who have reached the age of 65, and it is sometimes suggested that the difficulties in using Case A could be further compounded by an additional problem; a tenant’s challenge to the notice on the basis it is unlawfully discriminatory under the Equality Act.

The Equality Act 2010

The primary purpose of the Equality Act is to provide statutory protection from unfair treatment based on one of eight protected characteristics, including age.[1] It is unlawful to discriminate either directly, by treating someone less favourably because of a “protected characteristic” they possess,[2] or indirectly, by applying a provision, criterion or practice which puts people sharing a protected characteristic at a particular disadvantage.[3]

Part 4 of the Act specifically applies to the disposal and management of “Premises”. Private landlords need not worry about unlawful age discrimination when drafting the terms of a lease,[4]  or when considering whether to evict tenants, because that Part of the Act does not apply to the “protected characteristic” of age.[5] Part 4 also does not apply to the provision of accommodation, if the provision is: “…for the purpose of exercising a public function or providing a service to the public or a section of the public.”.[6]

Part 3 of the Act deals with the provision of services and the exercise of public functions and unlike Part 4, Part 3 does apply to the protected characteristic of age (except in relation to those under the age of 18.[7] Under Part 3, a “service provider” must not discriminate against a person as to the terms on which a service is

provided, by terminating the provision of a service to a person or by subjecting them to any other detriment.[1]

Public bodies are also subject to a public sector equality duty or “PSED” under the Act.[2] The PSED essentially requires a public authority to exercise its functions with due regard to the need to eliminate discrimination, promote understanding and so on.

Part 3 and the PSED have previously been used by tenants to claim age discrimination against local housing authorities.[3]

The first hurdle

The first hurdle for a tenant, in seeking to rely on the Act in avoiding retirement, is to demonstrate that a smallholdings authority is subject to Part 3 or the PSED in carrying out that function.

A person does not contravene the provisions of the Act where he does anything he must do pursuant to a requirement of an enactment.[4] That exclusion seems unlikely to come to the aid of a Local Authority carrying out a smallholdings authority function because the provisions of Schedule 3, Case A of the Agricultural Holdings Act 1986 are operated on a discretionary basis.

If a tenant succeeds in demonstrating that a Local Authority carrying out a smallholdings authority function is subject to Part 3, the Authority’s next line of defence is perhaps likely to be linked to the requirement to provide the tenant with suitable alternative accommodation. Perhaps in continuing to accommodate the tenant, the Authority could argue that it has continued to provide a service of housing the tenant and has not subjected the tenant to any detriment in relation to the provision of accommodation, given the requirements for the terms of the new tenancy.

Defence of seeking to achieve legitimate aims

A smallholdings authority could also rely upon the defence that the service of a Case A notice to quit is a proportionate means of achieving a legitimate aim.[5] To rely on such a defence, a smallholdings authority would need to show that it applies a consistent management practice across its smallholdings portfolio, which seeks to achieve legitimate aims (e.g. ensuring that the land is being well-managed, efficiently farmed and made available for new entrants).

A series of cases, which is potentially directly applicable, is Seldon v Clarkson Wright & Jakes[6] in which Mr Seldon challenged a solicitor’s partnership rule which required him to retire from partnership at the age of 65. The case proceeded from the Employment Tribunal to the Supreme Court, via the Court of Appeal, then back to the Employment Tribunal, and up to the Employment Appeal Tribunal.

Mr Seldon’s partners claimed that the rule had three legitimate aims which the Supreme Court accepted were valid:

(i) ensuring that associates were given the opportunity of partnership after a reasonable period as an associate, thereby ensuring that associates did not leave the firm (“retention”);

(ii) facilitating the planning of the partnership and workforce across individual departments by having a realistic long-term expectation as to when vacancies would arise (“workforce planning”), and;

(iii) limiting the need to expel partners by way of performance management, thus contributing to a congenial and supportive culture in the firm (“congeniality”).

The Employment Appeal Tribunal eventually upheld the policy on the basis that (quoting from the headnote): “…it was entirely appropriate to have an age to meet the [partnership’s] legitimate aims. An age was necessarily expressed as one point in time. The tribunal had to determine the balance between the discriminatory effect of choosing a particular age and its success in achieving the aim held to be legitimate.”

There may be an argument that an ’employment’ decision is not directly applicable to a property service, however the case might give cause for some optimism.

An interesting side point is whether a tenant seeking to rely on the Equality Act in opposing a notice to quit should make their arguments before an arbitrator, in separate high court proceedings, or in opposing an action for possession? The answer is for another time!

In summary, there may be grounds for a tenant to challenge a Case A notice to quit on the grounds of age discrimination. As such there is a need to have robust and justifiable policies in place, which underpin decisions to serve Case A notices  and show proportionate means of achieving a legitimate aim.

For more information please contact Adam Corbin, Barrister and Partner in the Agriculture team.