Social Welfare Update: Prioritisation of orthodox Jewish community in allocating social housing did not result in unlawful discrimination

Tuesday 16 July 2019

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The Agudas Israel Housing Association (AIHA) was a charitable housing association and private registered provider of social housing. One of its charitable objects was to carry on, for the benefit of the community (and ‘primarily the Orthodox Jewish Community’) ‘the business of providing housing, accommodation, and assistance to help house people’. To that end, AIHA owned a number of properties within Hackney which were inhabited by members of the Orthodox Jewish Haredi community and which, in current circumstances, were allocated only to members of that community.

Hackney LBC had nomination rights to AIHA properties, put in place pursuant to Part VI Housing Act 1996, and in making nominations Hackney would nominate those who fell within AIHA’s criteria. In practice, this meant that Hackney would only nominate Orthodox Jews for accommodation held by AIHA.

The Claimants were a mother and her youngest son, who lived in Hackney and had been awarded the highest priority for an allocation of social housing under Hackney’s allocation scheme as a result of their high level of need for accommodation. They were not Orthodox Jews. They sought judicial review of both Hackney and AIHA’s allocation policies.

It was common ground that AIHA’s arrangements constituted direct discrimination against non-members of the Orthodox Jewish Community. In view of which, it was necessary to consider whether that discrimination was justified under s158 Equality Act 2010 as a proportionate means of overcoming the disadvantage shared by that community. Alternatively, whether the discrimination was justified as a result of s193 Equality Act 2010, on the basis that it resulted from arrangements made pursuant to a charitable instrument and was a proportionate means of achieving a legitimate aim (s193(2)(a)) or was for the purpose of alleviating disadvantage linked to a protected characteristic (s193(2)(b)).

The Divisional Court found against the Claimants on both of these issues and dismissed the claim for judicial review. The court noted that the evidence showed, among other things, that strictly Orthodox Jews were more likely to experience poverty and deprivation than other ‘mainstream’ Jewish families. There was also evidence of ‘widespread and increasing overt anti-Semitism in our society’, including an increase in hate crimes, and that AIHA had housed many individuals over the years who had faced discrimination in trying to rent in the private sector owing to their appearance, language and religion. In these circumstances the Divisional Court held that AIHA’s arrangements were proportionate for the purposes of s158 and that, given there was substantial overlap between s158 and s193, the justification in s193 also applied.

The Claimant’s appealed, challenging the Divisional Court’s approach to the assessment of proportionality. The Court of Appeal dismissed the Claimant’s appeal.

The starting point in the Court of Appeal’s analysis was s193(2)(b) Equality Act 2010 which provides a justification for discrimination which is pursuant to a charitable instrument, where the provision of the benefit in question was ‘for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic’. If this did not require a proportionality assessment, the court reasoned, then the Claimant’s criticisms of the Divisional Court’s approach to proportionality ‘lead nowhere’.

Properly construed, the court held, and in contrast to the justifications contained in s193(2)(a) and s158, s193(2)(b) did not require a proportionality assessment and it was not necessary to construe the provision so as to require such an assessment, to ensure compliance with either the ECHR or EU law.

In relation to the ECHR, a proportionality assessment was not required because Article 8 ECHR was not engaged in circumstances where the Claimant was housed but needed to move somewhere bigger. Nor was Article 9 engaged: the possibility of being housed by AIHA was too far removed from the core value protected by that article.

In relation to EU law, a proportionality assessment was not required to ensure compatibility Directive 2000/43 (the Race Directive) as the case concerned religious discrimination and did not fall within the scope of the Directive. The fact that a case might arise in which s193 fell foul of the Race Directive was not a factor the Claimants could avail themselves of.

The consequence of this was that there was no need for AIHA to show that the manner in which they allocated accommodation under the scheme was proportionate in order to invoke s193(2)(b) and thereby justify the scheme. They simply needed to demonstrate that the restriction of accommodation to those of the Orthodox Jewish religion was for the purpose of preventing or compensating for a disadvantage linked to their religion. The Divisional Court had found that this requirement was satisfied. Accordingly, the criticisms of the Divisional Court’s approach to the proportionality assessment of did not assist the Claimants.

But in any event there was no error in the Divisional Court’s approach to proportionality. The court had considered the disadvantage to non-members of the Orthodox Jewish community – which consisted of the withdrawal of 1% of the potentially available units of accommodation – and found that the scale of that disadvantage was minimal, that the needs of the Orthodox Jewish community were compelling, that there was no more limited way of achieving AIHA’s charitable objectives and that, overall, the policy was proportionate. There was no flaw in that analysis such as would entitle an appeal court to intervene.

This meant that AIHA were acting lawfully. It followed from this that Hackney were also acting lawfully. Although Hackney could not rely on s193 because they were not a charity, they were entitled to rely on s158. Since AIHA’s policy was justified under s158(2), Hackney were not acting unlawfully in making nominations in accordance with that policy.

Click here for the judgment: R (Z) v Hackney LBC and Agudas Israel Housing Association [2019] EWCA Civ 1099.

Connor Johnston is a member of the Garden Court Chambers Housing team.

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