Discrimination Rules: Benefits, Children, and What You Can No Longer Ask

Discrimination Rules: Benefits, Children, and What You Can No Longer Ask

Since 1 May 2026 landlords and agents in England must not discourage or prevent anyone from renting because they have children or claim benefits. Sections 33 and 34 of the Renters' Rights Act 2025 cover both direct refusal and indirect criteria. Penalties reach up to £7,000 per breach, with a published starting point of £6,000.

This article is for general information purposes only and does not constitute legal advice. Landlords should seek independent legal advice for their specific circumstances. It describes the position in England.

What exactly is prohibited?

Sections 33 and 34 prohibit the same four things, one in relation to children and one in relation to benefits status. A relevant person must not, on either basis, prevent a person from:

• enquiring whether the dwelling is available to let
• accessing information about the dwelling
• viewing the dwelling in order to consider whether to seek to rent it
• entering into a tenancy of the dwelling

Each section then adds an indirect limb. Section 33(1)(b) prohibits applying a provision, criterion or practice which makes people who would have a child live with or visit them less likely to enter into a tenancy than people who would not. Section 34 mirrors that wording for benefits claimants.

The trigger is broader than actual circumstances. Discrimination based on a belief that turns out to be false is still discrimination, so refusing an applicant because you assume they have children is caught even if they do not.

The provisions bite on relevant tenancies, meaning assured tenancies under the Housing Act 1988 other than social housing under Part 2 of the Housing and Regeneration Act 2008 and supported accommodation under paragraph 12 of Schedule 2 to the 1988 Act. They applied to all such tenancies from 1 May 2026 regardless of when the tenancy was entered into, and they reach changes during a tenancy as well as the letting process. A tenant who has a child or begins claiming after moving in is protected.

Who is bound?

Section 42 defines a relevant person as the prospective landlord, and any person acting or purporting to act directly or indirectly on the prospective landlord's behalf. That is deliberately wide.

It captures letting agents, but it also captures referencing companies, and the government's guidance for landlords states expressly that it includes friends or family members helping with a letting. Instructing someone else to apply a criterion does not move the liability, and the referencing example in the guidance makes the point: where a referencing company disregards benefit income and the applicant fails affordability as a result, the landlord is the one fined.

Sections 33(3) and 34(3) contain a narrow carve out. Conduct is not a breach where it consists only of publishing advertisements, or facilitating direct communication between prospective landlords and tenants. That protects the portals rather than the people using them.

What can you no longer ask or say?

The Act does not list prohibited questions, so the test is functional: would the wording or the process make a person with children, or a person on benefits, less likely to end up with the tenancy?

On that test, the following are exposed:

The safer framing is to apply one written set of criteria to every applicant and to be able to show that you did. That is a documentation problem more than a policy problem.

The asymmetry most guides miss

The two limbs look parallel in the statute. They are not.

Section 33, children, carries a proportionality defence. The prohibition does not apply where the relevant person can show that the conduct is a proportionate means of achieving a legitimate aim. The government's guidance gives illustrative situations: shared accommodation such as student housing occupied by unrelated adults, a property too small such that occupation would cause overcrowding, licensing conditions, and safeguarding concerns that cannot reasonably be addressed. The guidance is explicit that the defence must be made out each time and requires the landlord to explain both why the restriction is necessary and why it applies to this applicant's situation. Its worked example of a defence succeeding concerns a small housing community for retired people that advertises itself as such.

Section 34, benefits, carries no equivalent defence. The GOV.UK landlord guidance states in terms that there is no proportionate means exception available to prevent people who get benefits from renting a property. A landlord who has a genuine commercial reason for preferring employed applicants has no route to justify it.

This asymmetry is the single most practically important feature of the regime, and treating the two limbs as interchangeable is the most likely way to get it wrong.

Insurance, mortgage and superior lease terms

Section 35 provides that a term of a tenancy agreement prohibiting children living at or visiting the property, or prohibiting the tenant being a benefits claimant, is of no effect, subject to the same proportionality and insurance qualifications. Parallel provisions cover superior leases and mortgages, and the GOV.UK guidance summarises the position as any part of a tenancy agreement, mortgage or superior lease that could be used to discriminate being invalid and unenforceable.

The insurance exception is real but closing. A relevant person may rely on a term of a contract of insurance that would be breached by the relevant occupation, but section 38 renders such terms of no effect where the contract is agreed or renewed on or after 1 May 2026. The GOV.UK guidance puts the practical test as requiring the policy both to contain the restriction and to have started before 1 May 2026, with the exception falling away once the policy ends or renews. It also notes that a tenant may ask to see the contract.

The consequence for a landlord relying on this is that the exception expires at the next renewal. Anyone whose letting policy currently rests on an insurance term should be treating that as a diary item rather than a settled position.

What is still permitted?

A good deal, and the guidance is clearer on this than most commentary suggests.

Affordability assessment remains permitted. The Act contains an express provision preserving the ability to take a prospective tenant's income into account, and the GOV.UK guidance confirms that landlords can decline applicants who genuinely cannot afford the rent. What is prohibited is the method: benefit income must be counted in the same way as any other income. Universal Credit, Personal Independence Payment, Employment and Support Allowance, State Pension and Pension Credit, Carer's Allowance, Child Benefit and Council Tax Support all appear on the guidance's list of relevant benefits.

Referencing, credit checks and Right to Rent checks remain permitted and, in the last case, mandatory. Choosing between applicants who all meet your criteria remains permitted. Requiring a guarantor remains permitted, provided the requirement applies on the same terms to everyone.

The distinction running through all of this is between an outcome and a route. Declining an applicant who cannot afford the rent is lawful. Declining them by a method that excludes benefit income is not, even where the same applicant would have failed a properly conducted assessment.

Penalties and enforcement

A local housing authority may impose a financial penalty of up to £7,000 where it decides that a relevant person has breached section 33 or 34. The decision is made on the balance of probabilities, not to the criminal standard, because there is no prosecution route for these breaches. The MHCLG statutory guidance published on 13 November 2025 sets a starting point of £6,000 for discrimination against those on benefits or with children in the lettings process, which is high relative to the £7,000 ceiling.

Repeat and continuing conduct is handled differently from most of the Act. A continuing breach may attract a further penalty where the conduct persists 28 days after the previous penalty, or after an appeal is determined, withdrawn or abandoned. A further breach of the same provision within five years may attract an additional penalty. Neither becomes a criminal offence, which is the opposite of the position for the assured tenancy duties. Where several people are responsible for the same conduct, the authority may penalise them jointly and severally. The full calculation method is set out in our civil penalties reference table.

Landlords operating outside England should note that Chapter 3 covers England only. Parallel regimes for Wales sit at sections 43 to 49, and for Scotland at sections 50 to 55, and their mechanics differ.

What to document

The defence to a discrimination allegation is almost always a record of consistency. Three things are worth holding for every letting: the written selection criteria applied, dated; the affordability calculation for each applicant, showing every income source that was counted; and the instructions given to any agent or referencing provider.

The third is the one landlords tend not to hold, and it is the one that matters most, because liability follows the instruction rather than the person who carried it out. A landlord who told an agent to apply an employment requirement has a problem regardless of who applied it. A landlord who can show that the agent was instructed to count benefit income, and did not, is in a materially better position when the authority asks. That request is increasingly likely to arrive from an authority that already knows the property is let, as covered in our article on how councils find non-compliant landlords.

Discrimination enforcement turns on whether a landlord can show that the same criteria were applied to everyone, and on whether policies resting on insurance or mortgage terms have been reviewed since those terms fell away. LLCR keeps a dated compliance record for each property and flags regulatory changes as they take effect, so policy reviews get prompted rather than forgotten.