Gathering evidence about housing discrimination

Under part 11 of the Simple Procedure Rules, you have to send a List of Witnesses Form at least 2 weeks before the hearing listing everyone you want to appear as a witness at the hearing. You can be your own witness.

You don't need to write a witness statement or ask your witnesses to write statements. It can help to take notes on what they saw and heard. They'll give evidence in person by answering questions at the hearing. 

When you're gathering your evidence you need to check whether the witness is willing to come to court and give evidence on your behalf. They need to answer questions at the hearing truthfully based on what they saw or what they know - it shouldn't be what you told them happened. You should also think about whether your witnesses are 'credible' - this means whether they are likely to be believed. A witness won't be very credible if they can't really remember what happened or keep changing their version of events.

In Simple Procedure the sheriff (judge) has discretion about how they want to hear evidence and they'll tell you how they want evidence to be presented. For example, they might question the witness directly or set a time limit for questioning. This can be stressful so you need to think about whether your witness is able to do this. If they drop out at the last minute it could affect your chances of success. The court can put in special measures to help vulnerable witnesses give evidence.

If someone's evidence is really important to your case and they refuse to come to a hearing or you think they're likely to back out at the last minute you can arrange for them to be served with a Witness Citation Notice. This means they can be made to attend a hearing. 

You’ll need evidence to show that a ‘comparator’ in the same situation as you would have been treated differently. If you know someone who could be a comparator, you can try to find out what happened to them and get a statement from them.

You’ll also need to think about how you could show that your protected characteristic was the reason or one of the reasons you were treated differently. The landlord, property manager or controller will probably say they have another reason, for example, if your a landlord or letting agent offered the property to someone else they might try to show the other person was a more suitable tenant.

Look for evidence that they have:

• ignored their own policies - make sure you have a copy of the policy

• given conflicting reasons for their actions or couldn’t explain them at the time - write down what they said and get copies of any documents or emails

• discriminated against other people - you’ll need statements from them or other evidence of this happening

• said or done things which make you think they’re discriminating - write down what happened

If there isn’t someone who has been in the same or similar situation you should try to create a ‘hypothetical comparator’. 

Direct discrimination is covered in section 13 of the Equality Act 2010.

There are a few steps to gathering the right evidence.

Identify what’s putting you at a disadvantage

First find the policy, rule or practice that puts you and people who share your protected characteristic at a particular disadvantage compared to people who don’t share it. The law calls this policy or rule a ‘provision, criterion or practice’.

You’ll need to say which policy, rule or way of doing things is unfair to people with your protected characteristic. It might be, for example, a rent arrears policy or a rule about anti social behaviour.

If it’s written down, try to get a copy - this could be in your tenancy agreement or on a letting agent’s website.

It doesn’t have to be called a policy or rule and it might not be in writing. For example a letting agent might tell you they only let people move into their homes on a certain day. Another example might be that a landlord always ignores phone calls from tenants and only ever replies to emails.

Show how it affects other people

You’ll need to show that the policy or rule seems to be neutral but puts people with your protected characteristic at a disadvantage. Think about whether it covers everyone, for example, it might be a tenancy agreement with standard wording that a landlord uses with all their tenants.

You then need to think about whether it puts people with your protected characteristic at a particular disadvantage compared to people without it. It doesn’t have to affect everyone with your characteristic.

For example, you could argue that banning tenants from changing light fittings discriminates against visually impaired people who might need to install stronger lighting.

You could try to get evidence to show how it affects other people with your protected characteristic. 

Get evidence about the reason for the discrimination

A landlord, property manager or controller might try to justify the way they’ve treated you. Write to them to ask why they treated you the way they did. You could raise this in a complaint letter. Ask why they need to have the rule or why they can’t agree to the changes you’ve asked for.

When you know the reason, think about whether they could have met their aim without discriminating against you. Try to think of ways they could have done things differently.

For example, you might have a landlord who wants you to move in on a certain day of the week, but you can’t because of your religion.

You might be able to gather evidence to show that the landlord’s office is open on another day so they could do check-ins that day instead.

Indirect discrimination is covered in section 19 of Equality Act 2010.

You’ll need to be able to show you’re disabled and the impact it has on you.

Check the Equality Act definition of disability and write down why it covers you. 

You'll need to say how you meet all the elements of being disabled. These are:

• you have a physical or mental impairment

• that impairment has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities

You’ll also need to write down

• how long you’ve had the disability

• the way it affects your day to day activities

• any treatment you’ve had

• how it will affect your life in the future - for example if you’ll have the condition for the rest of your life

If you’re trying to get a policy changed you should also make a note of how the policy affects you and people with your protected characteristic. You’ll need to pass this information to the person who’s discriminating against you.

If you’re taking any medication, make a note of how often you take it, how much and what side effects it has. Say what would happen if you stopped taking it, or what happens when the effect wears off - like if you’re taking painkillers.

Try to give some examples rather than making general statements. So instead of saying ‘I can’t lift things’, say ‘I can’t carry the shopping home any more, or put it in the car by myself. Someone has to come with me to help me.’

If you find it difficult to say how it affects you, or your symptoms change from week to week, you might find it helpful to keep a diary.

If you think the person who discriminated against you might disagree you’re disabled under the Equality Act 2010, you could ask people who know about your disability to write letters to use as evidence. For example, you could ask your carer, doctor or physiotherapist to write one. If you ask for a letter, check if you have to pay for it.

You don’t have to do this straight away. You can wait to see if the person you’re complaining about disagrees that you’re disabled.

Proving whether your landlord, property manager or controller knew you were disabled

You only need to show they knew you had a disability if it was discrimination arising from your disability.

This might be because you told them or because they should have known.

Evidence for showing they knew or should have known includes:

• an email you sent them explaining your disability

• copies of any complaint or request you’ve made to them for changes to your home to make it easier for you to live there

• notes of any meetings or conversations where you told them about it

• your housing application form if you told them on that

If you only told them verbally, write down who you told and when.

If you didn't tell them about your disability, you might be able to prove they should have known anyway.  The legal term for this is they should ‘reasonably have been expected to know’. This should be based on what they knew at the time of the discrimination.

This is covered by section 15 of the Equality Act 2010.

If your landlord, property manager or controller says they don’t think you have a disability

You should explain why you think you have a disability under the Equality Act 2010 and ask them why they disagree. You could try to get evidence to support your case and then show it to them to try to get them to change their mind.

You might be able to show that your condition is a disability under the Equality Act by looking online. Check if there are any charities or organisations that represent people with your disability. Their website might help you to work out whether the condition might be covered by the Equality Act.

You'll still need to think about your own situation. Not everyone with the same condition will be affected in the same way - some might be disabled under the Equality Act and others not.

Find disability organisations here.

To prove your disability you can get a report from your GP. You might have to pay for the report. Make sure the doctor will be able to give you the report in time for when you need it. Use the letter below as a template to ask for a report. 

You can ask the medical professional to include other comments, based on your situation. For example, if someone’s complaining about your behaviour, you can ask if the behaviour is linked to your disability.

You could also ask the professional to comment on whether there are any other ways the problem can be solved or improved which would discriminate against you less. For example, if you’re being accused of anti social behaviour that you think is because of your mental health condition, you can ask if any treatment could help. This might be counselling or other support.

If the  landlord, property manager or controller still disagrees, you could still complain and include your GP evidence. If you’re taking legal action you would have to make a claim to the sheriff court and ask the court to make a decision about whether you have a disability under the Equality Act 2010. The court will listen to what you say but you’ll have a much stronger case if you show them medical evidence. You might also be asked by the court to get medical evidence in the form of a joint expert report. 

If your landlord, property manager or controller hasn’t made reasonable adjustments for your disability

Get all the facts you have on:

• what you asked for (the ‘reasonable adjustment’) and when - check if the adjustment is covered by the Equality Act if you’re not sure

• whether you got a reply and what was said

• what happened next, for example if you asked again or asked for something different

You should also find out why they say they can’t make the adjustments. Think about their reasons and whether you can get any other evidence to argue against them. For example if they say it’s too expensive, think about what information is available about your landlord, property manager or controller’s financial situation. You don't have to do this but it could help you assess the strength of your case if you can.

Think about how you’ll explain that the change you asked for was ‘reasonable’.

It’s a good idea to consider:

• how long you’re likely to live in the property

• how much it will cost

• how difficult it will be for the landlord or manager to make the change

• how much the change is likely to help you

For example, if it’s a big housing association you might expect them to spend more on adjustments than a landlord who only has one property.

It’s a good idea to write down the difficulties you have without the adjustment and how the changes you wanted would have helped.

Think about whether there were any other changes they could have made that you didn’t ask for at the time. You can still mention these if you decide to go to court or you could suggest them now.

If you know anything about their financial circumstances, or adjustments they’ve made for other people, you could consider this when thinking about what’s reasonable.

Reasonable adjustments are covered in sections 20, 21, 36 and Schedule 4 Equality Act 2010.

If you’re being discriminated against because of something ‘arising from disability’

Get evidence to show that the reason you’ve been treated the way you have was connected to your disability. 

For example, if your landlord is understanding about the fact you’re deaf but has a problem with your assistance dog, you could:

• print copies of any emails he’s sent about you having the dog in the property

• get witnesses to make notes of discussions about the dog they’ve had with the landlord on your behalf

The person you’re complaining about will probably say they had a good reason for doing what they did - the legal term for this is a ‘proportionate means of achieving a legitimate aim’. Try to think of reasons they might have for treating you the way they did, or ask them. Then think of any evidence you have to show they could have achieved their aim without discriminating against you.

Discrimination arising from disability is covered in section 15 of the Equality Act 2010.

Make sure you've written down in detail what was said, when, where and by whom. Make it clear the behaviour was unwanted and related to a protected characteristic. You might have made complaints or said something, so you’ll need to include that in your evidence.

Courts don't expect you to have a witness to support you - most harassment isn't witnessed.

If anyone witnessed the harassment, get them to write down what they saw or heard. This could be a friend who you told what was happening at the time.

It could also be another tenant who has been through the same thing. Make them aware that they might be asked about what they witnessed in a court hearing so they need to be as clear and accurate as possible.

If someone doesn’t agree to being a witness, ask if they’re willing to tell you what happened to them or what they saw. Write down what they say in case it’s useful later.

If no one witnessed the harassment you can still make a complaint or take legal action - your own version of events is evidence. It’s a good idea to write down what happened as early as you can so you have an accurate record.

Harassment is covered in  section 26 of the Equality Act 2010.

If it’s victimisation you’ll also need details of the action you took before. The evidence you’ll need could include:

• a copy of your complaint - or a note of what you said if you made a verbal complaint

• a note of how you were treated and copies of any documents relating to it

• your landlord, property manager or controller’s reason for the way they treated you

• facts which suggest a link between the way you were treated and the complaint - like being given a formal notice asking you to leave a few days after your complaint, or if your landlord didn’t follow their own policies

• examples of how other people were treated in similar cases - you can ask the other side about this if you need more information

If you made a statement to back up someone else’s complaint, you should include that in your evidence.

You might find it useful to list all the events that happened in date order when making a victimisation claim. This is called a ‘chronology of events’.

Victimisation is covered by section 27 of the Equality Act 2010.