A JEWISH charity providing social housing exclusively for members of the Orthodox Jewish community, and the local authority that nominated candidates for accommodation owned by the charity, were not breaking the laws against race or religious discrimination, the Supreme Court unanimously ruled last week.
The Agudas Israel Housing Association (AIHA) was established as a charitable housing association in 1986 as a provider of social housing. Its object was to carry on as a social-housing landlord for the benefit of the community, and its “primary aim . . . is to house members of the Orthodox Jewish Community“.
The AIHA had its own waiting list, but the London Borough of Hackney, where many of the AIHA’s properties are, has nomination rights in respect of 75 per cent of the AIHA’s new developments. Under “Ethnic origin”, the AIHA’s application form asks whether the applicant is “Orthodox Jewish Ashkenazy” or “Orthodox Jewish Sephardic”.
An applicant who was identified in court only as “Z” is a single mother with four young children, two of whom have autism. She grew up and lives in Hackney, and does not belong to the Orthodox Jewish community. In 2017, Hackney Council, as the local housing authority with statutory functions in the allocation of social housing, accepted that Z was in severe housing need, and undertook to provide her with the next suitable unit of social-housing accommodation to become available.
She was not provided with suitable housing until 2019. Before she was rehoused, there were available properties belonging to AIHA which fitted Z’s criteria, but none of them was offered to Z, despite the council’s having the right to nominate social-housing applicants to AIHA’s properties.
Z, together with her three-year-old son, commenced court proceedings challenging the lawfulness of the arrangements made by the AIHA in effectively precluding those who were not members of the Orthodox Jewish community from becoming its tenants, and the arrangements made by Hackney Council under the nominations arrangement with the AIHA. Z alleged that those arrangements discriminated against persons like her on grounds of religion or race, or both, and were therefore in breach of the Equality Act 2010.
The AIHA relied on sections of the Equality Act which permit discrimination in favour of those who suffer from disadvantages due to a “protected characteristic”, and argued that its conduct was thereby rendered lawful. The court was provided with extensive evidence about the problems faced by the Orthodox Jewish community in Hackney, and the need for it to gather in Stamford Hill.
In February 2019, the High Court found that the Orthodox Jewish Haredi community were more likely to experience poverty and deprivation than other “mainstream” Jewish families. Most of the Haredi community were unwilling to live outside Stamford Hill, where the AIHA’s properties were located, and so tended not to bid for social housing elsewhere.
Nearly all the Haredi community in social housing in Hackney were the AIHA’s tenants. They faced prejudice when trying to rent from the private sector, and also needed to live close to facilities such as suitable schools, synagogues, and shops. The High Court was satisfied that there was a strong correlation between their evidenced poverty and deprivation, and their religion, which was explained in part by their way of life.
The High Court therefore dismissed Z’s claim, on the ground that the AIHA was taking positive action to benefit a group that suffered from disadvantages due to a “protected characteristic”, and was therefore not acting unlawfully. Z appealed to the Court of Appeal, who agreed with the High Court. She then appealed to the Supreme Court.
The Supreme Court said that, “If AIHA changed its allocation policy to bring in people who were not members of the Orthodox Jewish community, that would inevitably dilute the impact it could have on addressing the needs and disadvantages experienced by the community in connection with their faith.” It was proportionate, the Supreme Court said, for AIHA to adopt an allocation policy that sought to meet the particular needs and alleviate the particular disadvantages experienced by the Orthodox Jewish community in connection with their religion.
Moreover, AIHA’s allocation policy involved differentiation on grounds of religious observance, which was not prohibited. It did not involve discrimination on grounds of race or ethnic origin.