Orthodox housing association can cater only to strictly orthodox

30 June 2019 by

Z & A v another, R (on the application of) v London Borough of Hackney and Agudas Israel Housing Association Ltd [2019] EWCA Civ 1099

The Agudas Israel Housing Association (“AIHA”) owns and allocates social housing exclusively to members of the Orthodox Jewish community.  In these proceedings it was argued that Z, a single mother with four children, had suffered unlawful discrimination when Hackney council had failed to put her name forward for suitable housing. This was because of AIHA’s practice of only letting its properties to members of the Orthodox Jewish community. Although the nominal respondent in these proceedings was Hackney LBC this was only because in practice Hackney nominates properties owned by the AIHA. Primarily the challenge was to AIHA’s allocation policy.

It was common ground that AIHA’s arrangements constituted direct discrimination on grounds of religion. The question was whether this discrimination was lawful. The Divisional court held that it was, being a proportionate means of compensating a disadvantaged community (at [2019] EWHC 139 (Admin)).

A number of laws prohibit discrimination in the supply of goods and services, including housing. The European Convention on Human Rights obliges states to prevent discriminatory practices as does the EU Charter of Fundamental Rights and Freedoms. The 2000 EU Race Directive, incorporated by the 2010 Equality Act, applies this prohibition to “all persons, as regards both the public and private sectors”.

The Divisional Court had declared itself satisfied that the there was a strong correlation between poverty and deprivation in the Haredi community and their religion. It accepted that Orthodox Judaism was not a lifestyle but a way of life, “especially affecting educational and employment opportunities.”  [para 64]

This conclusion was not under challenge in the present appeal. What was argued on behalf of Z was that the Divisional Court had misconducted the proportionality exercise as required by the Equality Act. It was submitted that a proportionality assessment was a requirement of EU and ECHR law. Z also contended that, in allowing the discriminatory allocation, the council had failed to promote the welfare of her children under Section 11 of The Children Act. The court below had failed properly to consider

(i) the evidence before it of other groups who faced similar prejudice and discrimination, including in relation to access to housing; (ii) the evidence of other groups who face a similar level of hardship in accessing accommodation, including hardship because of their large family sizes; and (iii) evidence that the Orthodox Jewish community face no material disadvantage in terms of accessing suitable housing relative to other groups (including evidence that the Orthodox Jewish community are over-represented in the private rented sector). [para 76]

The Court of Appeal dismissed the appeal. The council’s policy fell outside the ambit of the Convention right to respect for a home under Article 8 together with the right to equal enjoyment of that respect under Article 14.

a local authority has no obligation to provide someone with a home: R (Ahmad) v Newham LBC [2009] UKHL 14[2009] PTSR 632. Nor does article 8 itself entitle someone to be provided with a home.

… what we are concerned with is, in effect, the ability of a person in Z’s position to move home. She is already housed (if not entirely satisfactorily) by Hackney; and wants to move to a larger property.

In any event, the Court below had been entitled to find that the policy was proportionate to the legitimate aim of compensating a deprived community.

Nor did the relevant section of the Race Directive require a proportionality assessment to be carried out. If it did, it would mean that an assessment of the relative disadvantage of different groups would be necessary. The fact that such an assessment is specifically excluded by 193 (2) (b) of the Equality Act demonstrated that a proportionality assessment was not required.

It was not for an appellate court to interfere with the findings of the court of first instance, particularly here, where the judges below were presented with a “mass of demographic and sociological evidence from multiple reputable sources.” In any event it would be unfair to suggest that the Divisional Court had not considered the available evidence. The effect of AIHA’s allocation policy (taken at its most restrictive) was to withdraw from the pool of potentially available properties for letting 1 per cent of units. The remaining 99 per cent were potentially available to persons who do not share the relevant protected characteristic. Thus the disadvantage to those persons was “minuscule”. The allocation of properties to people outside the Orthodox Jewish community would undermine AIHA’s charitable objective. There was no more limited way of achieving the legitimate aim. The court had been entitled to hold that the practical effect of the policy was proportionate, R. (on the application of Coll) v Secretary of State for Justice [2017] UKSC40.

Hackney Council therefore had not acted unlawfully in making housing nominations in accordance with that policy.

As for the argument under the Children Act, the Divisional Court had properly rejected it.  AIHA’s policy was designed to alleviate high levels of child poverty within the Orthodox Jewish community. The council’s policy provided for a direct offer which would move somebody in the applicant’s position to the top of the queue (one of her 4 children had been diagnosed with autism). Since this is precisely what had happened in Z’s case, her children’s needs had been met according to the 2004 Act.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV Housing HRLA human rights Human Rights Act human rights conventions human rights damages Human Rights Day human rights decisions human rights news Human Rights Watch Huntington's Disease immigration Immigration/Extradition immunity India Indonesia Infrastructure Planning Committee Inhuman and degrading treatment injunction Inquest Inquests insurance intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty Iran Iranian nuclear program Iraq Iraq War Ireland islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland legal aid legal aid cuts legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberty library closures Libya licence conditions life sentence lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Taylor luftur rahman MAGA Magna Carta Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation Maria Gallastegui marriage material support maternity pay Matthew Woods Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical negligence medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness MGN v UK michael gove Midwives migrant crisis military Milly Dowler Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder music Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience news new Supreme Court President NHS NHS Risk Register Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London Offensive Speech oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution Personal Injury personality rights perversity PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning system plebgate POCA podcast points Poland Police police investigations police liability police powers police state police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings post office power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radicalisation Radmacher Ramsgate rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg sumption super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: