Legal Corner: Jewish housing association’s discriminatory policy was justified

30th Aug 2019

The Court of Appeal recently heard the case of The Queen (on the application of Z) v The London Borough of Hackney and Agudas Israel Housing Association Ltd [2019] EWCA Civ 1099.

Z was a single mother of four children, including one child with autism. She grew up in Hackney and had lived in the area all her life. She and her family were assessed by the borough as having the highest possible need for re-housing under its social housing scheme and listed as requiring a four-bedroom property. However, she was not made an offer of social housing, despite there being at least six four-bedroom properties available. These were owned by Agudas Israel Housing Association Ltd (AIHA) who are a charitable housing association formed to benefit the Orthodox Jewish Community.

Properties owned or controlled by AIHA are only allocated to members of the Orthodox Jewish Community and the borough therefore only nominate applicants for these houses who meet this criterion. Z was not a member of the Orthodox Jewish Community and therefore did not qualify for these properties.

Z, therefore, challenged the selection process used by both AIHA and the borough, arguing that they were discriminatory and unlawful. In the High Court, AIHA accepted that its policy was discriminatory on the grounds of religion. However, it argued that its policy was a positive measure to alleviate disadvantage to the Orthodox Jewish Community and was thus a proportionate means of achieving a legitimate aim.

The High Court agreed. It was satisfied that there was a strong correlation between poverty in the Orthodox Jewish Community and their religion, which particularly affected education and employment opportunities. The Court also noted that growing anti-Semitism, both within in the private rental market and general anti-Semitic abuse, meant that the Orthodox Jewish Community had different needs to those that did not share their protected characteristic, including the need to live close together as a tight-knit community.

Z appealed to the Court of Appeal; she argued that the lower court had misapplied the test of proportionality and had not looked at the hardship suffered by other communities in comparison to the Orthodox Jewish Community. She also argued that the lower court had failed to consider her right to respect for a person’s home under Article 8 of the European Convention of Human Rights.

The Court of Appeal made clear that Article 8 did not entitle a person to be provided with a home, nor did it mean that a local authority was under an obligation to provide someone with a home. They also decided that AIHA’s policy was permitted under the Equality Act 2010, as it prevented disadvantage to the Orthodox Jewish Community for all the reasons considered by the High Court.

In assessing the proportionality of AIHA’s policy, they particularly noted that AIHA only owned about 1% of the social housing lettings in the London Borough of Hackney. The consequences of a lack of access to this 1% of properties for the non-Orthodox Jewish Community was minuscule as compared to the significant positive impact on the Orthodox Jewish Community, given the nature and type of these properties, and their location. It was therefore clearly proportionate for AIHA to act in the way that it did to achieve its aim.

This is one of the first decisions by the Court of Appeal on the provisions of the Equality Act dealing with positive action. It is relevant to a variety of areas where discrimination might occur, from the provision of services to the employment arena. There is a fine line between positive action (which is lawful) and positive discrimination (which is not).

However, that line is highly dependent on the particular circumstances, and often difficult to define. In this case, there was a very detailed analysis of the particular evidence put forward to highlight the disadvantage claimed, which highlights the importance of having clear and cogent evidence to underpin any attempt to take positive action in this way.

Safia Tharoo, Barrister, 42 Bedford Row, London

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