Orthodox housing association can cater only to strictly orthodox
30 June 2019
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  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.
… 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  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.