Section 50 Discrimination relating to children or benefits statusI1I2

The Private Housing (Tenancies) (Scotland) Act 2016 (asp 19) is amended in accordance with subsections (2) to (4).

After section 6 insert—

“Part 1A

Choice of tenant

Offence of discriminating in relation to children

6A

(1)

It is an offence for a relevant person to, in relation to a property that is to be let on an agreement which may give rise to a private residential tenancy—

(a)

prevent a person, on the basis that the relevant person believes that the property would or may be used by a child if the property were the person’s home, from—

(i)

enquiring whether the property is available for let,

(ii)

accessing information about the property,

(iii)

viewing the property in order to consider whether to seek to rent it, or

(iv)

entering into a tenancy of the property, or

(b)

apply a provision, criterion or practice in order to make people who would allow the property to be used by a child less likely to enter into a tenancy of the property than people who would not.

(2)

It is a defence for the relevant person to show—

(a)

that the conduct is a proportionate means of achieving a legitimate aim, or

(b)

that the property is insured under an excluded contract of insurance and the conduct is a means of preventing the insured from breaching the term which causes the contract to be an excluded contract of insurance.

(3)

Conduct does not constitute an offence under subsection (1) if it consists only of—

(a)

things done by a person who does nothing in relation to the property other than one or more of the following things—

(i)

publishing advertisements or disseminating information,

(ii)

providing a means by which a prospective landlord can communicate directly with a prospective tenant,

(iii)

providing a means by which a prospective tenant can communicate directly with a prospective landlord, or

(b)

things of a description, or things done by a person of a description, specified for the purposes of this section in regulations made by the Scottish Ministers.

(4)

A person who commits an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(5)

For the purpose of this section—

(a)

a property is used by a child if a child lives with or visits a person at the property,

(b)

a contract of insurance is an excluded contract of insurance if—

(i)

section 52 of the Renters’ Rights Act 2025 (terms in insurance contracts relating to children or benefits status) does not apply to it, and

(ii)

it contains a term which makes provision (however expressed) requiring the insured to prohibit a tenant under a private residential tenancy from allowing a child to use the property, or to restrict the circumstances in which such a tenant may allow a child to do so.

Offence of discriminating in relation to benefits status

6B

(1)

It is an offence for a relevant person to, in relation to a property that is to be let on an agreement which may give rise to a private residential tenancy—

(a)

prevent a person, on the basis of the person’s benefits status, from—

(i)

enquiring whether the property is available for let,

(ii)

accessing information about the property,

(iii)

viewing the property in order to consider whether to seek to rent it, or

(iv)

entering into a tenancy of the property, or

(b)

apply a provision, criterion or practice in order to make people who are or who, if the property were their home, may become benefits claimants less likely to enter into a tenancy of the property than people who are not.

(2)

It is a defence for the relevant person to show that the property is insured under an excluded contract of insurance and the conduct is a means of preventing the insured from breaching the term which causes the contract to be an excluded contract of insurance.

(3)

Conduct does not constitute an offence under subsection (1) if it consists only of—

(a)

things done by a person who does nothing in relation to the property other than one or more of the following things—

(i)

publishing advertisements or disseminating information,

(ii)

providing a means by which a prospective landlord can communicate directly with a prospective tenant,

(iii)

providing a means by which a prospective tenant can communicate directly with a prospective landlord, or

(b)

things of a description, or things done by a person of a description, specified for the purposes of this section in regulations made by the Scottish Ministers.

(4)

A person who commits an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(5)

For the purpose of this section—

(a)

something is done on the basis of a person’s benefits status if it is done on the basis that the relevant person believes that the person is, or may be or, if the property were the person’s home, may become a benefits claimant,

(b)

a contract of insurance is an excluded contract of insurance if—

(i)

section 52 of the Renters’ Rights Act 2025 (terms in insurance contracts relating to children or benefits status) does not apply to it, and

(ii)

it contains a term which makes provision (however expressed) requiring the insured to prohibit a tenant under a private residential tenancy from being a benefits claimant.

Discriminatory terms relating to children or benefits status

6C

(1)

A term of a private residential tenancy is of no effect so far as the term makes provision (however expressed)—

(a)

prohibiting the tenant from having a child live with or visit the tenant at the property or restricting the circumstances in which the tenant may have a child do so, or

(b)

prohibiting the tenant from being a benefits claimant.

(2)

But—

(a)

subsection (1)(a) does not apply if the provision is a proportionate means of achieving a legitimate aim,

(b)

subsection (1)(a) and (b) does not apply to the extent that the landlord is insured under an excluded contract of insurance and the provision in the tenancy is a means of preventing the landlord from breaching the term which causes the contract to be an excluded contract of insurance.

(3)

For the purpose of subsection (2)(b), a contract of insurance is an excluded contract of insurance if—

(a)

section 52 of the Renters’ Rights Act 2025 (terms in insurance contracts relating to children or benefits status) does not apply to it, and

(b)

it contains a term which makes provision (however expressed) requiring the landlord—

(i)

to prohibit the tenant from having a child live with or visit the tenant at the property or to restrict the circumstances in which the tenant may have a child live with or visit the tenant at the property, or

(ii)

to prohibit the tenant from being a benefits claimant.

No prohibition on taking income into account

6D

Nothing in this Part prohibits taking a person’s income into account when considering whether that person would be able to afford to pay rent under a private residential tenancy.

Interpretation of Part 1A

6E

In this Part—

• “benefits claimant” means a person who—

  1. (a)

     is entitled to payments (including payments made directly to a landlord) under or by virtue of benefits and welfare legislation, or

  2. (b)

     is entitled, by virtue of section 80 of the Local Government Finance Act 1992, to a reduction in the amount of council tax payable in respect of the property on the basis of income or an entitlement to a payment mentioned in paragraph (a),

• “benefits and welfare legislation” means—

  1. (a)

     the Social Security Contributions and Benefits Act 1992,

  2. (b)

     the Jobseekers Act 1995,

  3. (c)

     the State Pension Credit Act 2002,

  4. (d)

     the Tax Credits Act 2002,

  5. (e)

     the Welfare Reform Act 2007,

  6. (f)

     the Welfare Reform Act 2012,

  7. (g)

     the Pensions Act 2014,

  8. (h)

     the Social Security (Scotland) Act 2018,

• “child” means a person under the age of 18,

• “prospective landlord” means a person who proposes to let a property on an agreement which may give rise to a private residential tenancy,

• “prospective tenant” means a person seeking to find a property to rent,

• “relevant person”, in relation to a property, means—

  1. (a)

     the prospective landlord,

  2. (b)

     a person acting or purporting to act directly or indirectly on behalf of the prospective landlord.”

Before section 76, insert—

“Crown application

75A

(1)

Nothing in Part 1A makes the Crown criminally liable.

(2)

But the Court of Session may, on an application by the Lord Advocate, declare unlawful any act or omission for which the Crown would be criminally liable were it not for subsection (1).

(3)

Subsection (1) does not affect the criminal liability of persons in the service of the Crown.”

In section 77 (regulation-making powers), in subsection (4), after “sections” insert “6A(3)(b), 6B(3)(b),”.

The Housing (Scotland) Act 1988 is amended in accordance with subsection (6).

After section 26 insert—

“Discriminatory terms relating to children or benefits status

26A

(1)

A term of an assured tenancy is of no effect so far as the term makes provision (however expressed)—

(a)

prohibiting the tenant from having a child live with or visit the tenant at the dwelling or restricting the circumstances in which the tenant may have a child do so, or

(b)

prohibiting the tenant from being a benefits claimant.

(2)

But—

(a)

subsection (1)(a) does not apply if the provision is a proportionate means of achieving a legitimate aim, and

(b)

subsection (1)(a) and (b) does not apply to the extent that the landlord is insured under an excluded contract of insurance and the provision in the tenancy is a means of preventing the landlord from breaching the term which causes the contract to be an excluded contract of insurance.

(3)

For the purpose of subsection (2)(b), a contract of insurance is an excluded contract of insurance if—

(a)

section 52 of the Renters’ Rights Act 2025 (terms in insurance contracts relating to children or benefits status) does not apply to it, and

(b)

it contains a term which makes provision (however expressed) requiring the landlord—

(i)

to prohibit the tenant from having a child live with or visit the tenant at the dwelling or to restrict the circumstances in which the tenant may have a child live with or visit the tenant at the dwelling, or

(ii)

to prohibit the tenant from being a benefits claimant.

(4)

In this section—

• “benefits claimant” means a person who—

  1. (a)

     is entitled to payments (including payments made directly to a landlord) under or by virtue of benefits and welfare legislation, or

  2. (b)

     is entitled, by virtue of section 80 of the Local Government Finance Act 1992, to a reduction in the amount of council tax payable in respect of the property on the basis of income or an entitlement to a payment mentioned in paragraph (a),

• “benefits and welfare legislation” means—

  1. (a)

     the Social Security Contributions and Benefits Act 1992,

  2. (b)

     the Jobseekers Act 1995,

  3. (c)

     the State Pension Credit Act 2002,

  4. (d)

     the Tax Credits Act 2002,

  5. (e)

     the Welfare Reform Act 2007,

  6. (f)

     the Welfare Reform Act 2012,

  7. (g)

     the Pensions Act 2014,

  8. (h)

     the Social Security (Scotland) Act 2018,

• “child” means a person under the age of 18.”

The Rent (Scotland) Act 1984 is amended in accordance with subsection (8).

After section 101 insert—

“Discriminatory terms relating to children or benefits status

101A

(1)

A term of a protected or statutory tenancy is of no effect so far as the term makes provision (however expressed)—

(a)

prohibiting the tenant from having a child live with or visit the tenant at the dwelling or restricting the circumstances in which the tenant may have a child do so, or

(b)

prohibiting the tenant from being a benefits claimant.

(2)

But—

(a)

subsection (1)(a) does not apply if the provision is a proportionate means of achieving a legitimate aim, and

(b)

subsection (1)(a) and (b) does not apply to the extent that the landlord is insured under an excluded contract of insurance and the provision in the tenancy is a means of preventing the landlord from breaching the term which causes the contract to be an excluded contract of insurance.

(3)

For the purpose of subsection (2)(b), a contract of insurance is an excluded contract of insurance if—

(a)

section 52 of the Renters’ Rights Act 2025 (terms in insurance contracts relating to children or benefits status) does not apply to it, and

(b)

it contains a term which makes provision (however expressed) requiring the landlord—

(i)

to prohibit the tenant from having a child live with or visit the tenant at the dwelling or to restrict the circumstances in which the tenant may have a child live with or visit the tenant at the dwelling, or

(ii)

to prohibit the tenant from being a benefits claimant.

(4)

In this section—

• “benefits claimant” means a person who—

  1. (a)

     is entitled to payments (including payments made directly to a landlord) under or by virtue of benefits and welfare legislation, or

  2. (b)

     is entitled, by virtue of section 80 of the Local Government Finance Act 1992, to a reduction in the amount of council tax payable in respect of the property on the basis of income or an entitlement to a payment mentioned in paragraph (a),

• “benefits and welfare legislation” means—

  1. (a)

     the Social Security Contributions and Benefits Act 1992,

  2. (b)

     the Jobseekers Act 1995,

  3. (c)

     the State Pension Credit Act 2002,

  4. (d)

     the Tax Credits Act 2002,

  5. (e)

     the Welfare Reform Act 2007,

  6. (f)

     the Welfare Reform Act 2012,

  7. (g)

     the Pensions Act 2014,

  8. (h)

     the Social Security (Scotland) Act 2018,

• “child” means a person under the age of 18.”