Background

The Agudas Israel Housing Association Ltd (“Agudas”) is a charity that makes social housing available primarily for Orthodox Jews in Hackney: in particular, for Charedis. Its properties constitute less than one per cent of social housing in Hackney. A non-Jewish woman, Z, with four children, including a son with autism, was at the top of Hackney Council’s list for a four-bedroom home in the area. 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. In R (Z & Anor) v London Borough of Hackney & Anor [2019] EWCA Civ 1099 her appeal was dismissed.

The judgment

In R (Z & Anor) v Hackney London Borough Council & Anor [2020] UKSC 40, the Supreme Court unanimously dismissed Ms Z’s further appeal.

The Equality Act 2010 outlawed direct discrimination against any person on the basis of certain protected characteristics ­– which included race and religion or belief [17]-[18]; however, s.158 provided an exemption where positive action addressed in a proportionate manner needs or disadvantages connected to a protected characteristic [19]. Further, s.193(2)(a) permitted charities to restrict benefits to those with a protected characteristic if that restriction was a proportionate means of achieving a legitimate aim; and s.193(2)(b) permitted charities to restrict benefits to those who shared a protected characteristic if the restriction sought to prevent or compensate for a disadvantage linked to the characteristic [21]. Members of the Charedi community did, in fact, suffer a disadvantage linked to their protected characteristic, particularly in relation to housing; and Agudas’s allocation policy included the flexibility to rent properties to non-Charedim if surplus properties were available (although, in practice, they never were).

In this case, the legitimate aims included the minimisation of disadvantages connected to the Charedi community’s religious identity and counteracting discrimination that they suffered, including in the private housing market, and the fulfilment of relevant needs which were particular to that community [66]. Agudas was entitled to adopt a clear and strict rule about who could and who could not apply for its social housing to ensure that its charitable activities were focused on the Orthodox Jewish community – so that its activities did in fact fulfil its charitable objective to alleviate the problems of that community [76]-[87]. The Divisional Court had correctly considered Agudas’s allocation policy in the light of the applicable legal framework and, accordingly, had been entitled to find it to be proportionate and lawful under those statutory exemptions.

It was not necessary to resolve the question whether or not the case fell within the ambit of Article 8 ECHR (private and family life) and the Court preferred to leave that issue open [96, 116]. As to the argument that the practice was contrary to the Race Directive, Agudas was not contravening the Directive because its allocation policy differentiated on the basis of religious observance rather than on grounds of race or ethnic origin [89]-[90].

Comment

Stephanie Biden and Jess Neville, of Bates Wells, suggest that the judgment

“provides reassurance to charities which limit their activities – in line with their governing document – to particular groups of people, but charities must ensure they can show that those people suffer a particular disadvantage, or that the policy is a proportionate means of achieving a legitimate aim.”