Background
A non-Jewish woman, Z, had four children, including a son with autism. She was at the top of Hackney Council’s list for a four-bedroom home in the area. The co-defendant, the Agudas Israel Housing Association (AIHA), was founded in 1986 to provide social housing for Orthodox Jews in north London: it does not accept applications from anyone outside the Orthodox community. Six four-bedroom properties owned by AIHA became available but Ms Z was not allowed to apply for one of them. She sought judicial review of that refusal, arguing that it was unlawful and discriminatory for the AIHA to refuse her a home. As we noted, in R (Z & Ors) v Hackney London Borough Council & Anor [2019] EWHC 139 (Admin), a Divisional Court dismissed her claim, holding that a Jewish housing association might legitimately refuse to rent houses to those who were not Orthodox Jews. Z appealed.
in R (Z & Anor) v London Borough of Hackney & Anor [2019] EWCA Civ 1099 the appeal was dismissed.
The judgment
The human rights issue
Lewison LJ (with whom King LJ and Sir Stephen Richards agreed) rejected the argument that either Article 14, Article 8 or Article 9 ECHR was applicable to the facts, noting that Article 14 did not operate in a vacuum:
“It applies only to those rights which are protected Convention rights. Thus, in order for the argument under the Human Rights Act to succeed, it is necessary to show that the impugned activity falls within the ambit of one or more of the protected Convention rights. While it is not necessary to show an actual violation of a Convention right, it is necessary to show that a personal interest close to the core of such a right is infringed. A tenuous link is not enough: R (H) v Ealing LBC [2017] EWCA Civ 1127, [2018] PTSR 541 at [93]” [45].
Counsel for Z had not offered any argument in support of the proposition that AIHA’s allocation policy fell within the ambit of any protected Convention right, mentioning Articles 8 and 9 “only in passing” [46]. There was no doubt that, as a matter of domestic law, a local authority had no obligation to provide someone with a home: R (Ahmad) v Newham LBC [2009] UKHL 14, [2009] PTSR 632. Nor did Article 8 entitle someone to be provided with a home [46]. Furthermore, in R (H) v Ealing LBC the Court of Appeal had rejected the proposition that a housing allocation policy fell within the ambit of Article 8 [47 & 48]. As regards Article 9, the possibility of being housed in a property owned by AIHA was “far removed from the ‘core value’ protected by that article. Any connection is at best tenuous, if indeed there is any connection at all” [51].
The equality/proportionality issue
Lewison LJ found that AIHA’s allocation policy was a proportionate means of achieving a legitimate aim [52] and permitted by s.193 (1) and s.193 (2) (b) of Equality Act 2010 [62]. On that basis, the appeal failed; however, he went on to deal with the detailed issues of proportionality since they had been fully argued.
On proportionality, he concluded that the Divisional Court had answered the questions about disadvantage that had been posed by the Supreme Court’s judgment in R (Coll) v Secretary of State for Justice [2017] UKSC 40:
“1. The disadvantage to non-members of the Orthodox Jewish community was the withdrawal of 1 per cent of the potentially available units of accommodation.
2. The scale of that disadvantage was minuscule.
3. The needs of the Orthodox Jewish community linked to the relevant protected characteristic were many and compelling.
4. The allocation of properties to non-members of the Orthodox Jewish community would fundamentally undermine AIHA’s charitable objectives. Thus there was no more limited way of achieving the legitimate aim.
5. Weighing these factors together, AIHA’s allocation policy was proportionate” [87].
On that basis, he did not consider that the analysis contained any flaw that would entitle an appeal court to intervene and, for these reasons also, he would reject the appeal in so far as directed against AIHA [88].
As for the case against Hackney LBC, the Council could not rely on s.193 because it was not a charity: however,
“If (as I would hold) AIHA’s allocation policy is justified by section 158, I cannot see why Hackney cannot rely on section 158, which applies to everybody, even though Hackney did not advance a positive case to that effect. The evidence … was that Hackney believes that AIHA’s allocation policy is lawful because providing housing to the Orthodox Jewish community ‘meets particular housing needs of the Orthodox Jewish community that are not adequately served by the private rented market'”[90].
He added that the evidence was that Hackney had formed the “reasonable opinion” described in s.158(1). “Because AIHA’s allocation policy satisfies section 158(2), Hackney is not acting unlawfully in making nominations in accordance with that policy.” He agreed with the Divisional Court’s finding that AIHA was co-operating with Hackney LBC in a manner that was consistent with its own lawful arrangements [90].