Council and Jewish housing association defeat challenge over allocations
A case concerning the lawfulness of a housing association letting homes on the basis of religion could go to the Court of Appeal after the Hackney-based Agudas Israel Housing Association (AIHA) won a Divisional Court case.
The case of Z & Ors, R (On the Application Of) v Hackney London Borough Council & Anor [2019] EWHC 139 was brought by applicant R against AIHA and the London Borough of Hackney.
R and her three-year-old son challenged the allocation policies of the council and AIHA, arguing that these “in effect preclude any persons who are not members of the Orthodox Jewish community from becoming tenants of [its] properties”.
The Divisional Court challenge was also to the lawfulness of Hackney's arrangements for the nomination of applicants to these properties, which were also in effect restricted to Orthodox Jews.
Lindblom LJ and Sir Kenneth Parker said: “In short, the claimants contend that these arrangements discriminate against them because they are not members of the Orthodox Jewish community, and are unlawful, principally, under the Equality Act 2010.”
The court said it was common ground that AIHA's arrangements involved direct discrimination as defined by section 13(1) of the 2010 Act as it treated less favourably those who were not members of the Orthodox Jewish community.
AIHA said its discriminatory conduct was rendered lawful, both by section 158 and also by section 193 of the 2010 Act.
The judges said the community was characterised by high levels of poverty and deprivation, and “we are satisfied that…there is a strong correlation between the evidenced poverty and deprivation and the religion.
“This is explained in part by the way of life, especially affecting educational and employment opportunities, which is characteristic of the Orthodox Jewish community.” They also noted widespread anti-Semitism.
AIHA provided homes in which residents could follow their religion and could avoid discrimination in lettings.
“We are satisfied, for these reasons, that AIHA's arrangements for allocating housing, which place Orthodox Jews in a primary position, enable them both to avoid the disadvantages and to meet the needs to which we have referred.”
They concluded that AIHA’a arrangements were proportionate as “the disadvantages and needs of the Orthodox Jewish community are many and compelling. They are also in many instances very closely related to the matter of housing accommodation.”
R’s solicitor Rebekah Carrier, of law firm Hopkin Murray Beskine, said: “This is a very surprising case which involves direct discrimination on the grounds of religion.
“My clients have been assessed as in the very greatest need of housing by their local housing authority, but the discrimination in this context means that a very scarce publicly funded resource, social housing, is being allocated not to those assessed as in the greatest need but to those with the right religion.”
Ms Carrier said Hackney’s prioritisation of applicants for housing on the basis of need was being “trumped by membership of a particular religion” in AIHA homes. She said the High Court’s errors included failing to properly analyse proportionality.
Mark Smulian
