ECHR dismisses discrimination claim against council housing policy for Orthodox Jewish community

A legal challenge claiming the London Borough of Hackney's decision not to refer a mother to a housing association on the basis of her not being part of the Orthodox Jewish Community (OJC) has been unanimously dismissed by the European Court of Human Rights (ECHR).

In L.F. v. The United Kingdom, the ECHR found that the circumstances of the case did not exceed the wide margin that is usually allowed to the State under the European Convention of Human Rights (the Convention) when it comes to general measures of economic or social strategy.

The applicant, a single mother of four children, lived in temporary accommodation provided to her by the London Borough of Hackney.

Whilst there, the mother became aware of six four-bedroom properties owned by Agudas Israel Housing Association (AIHA), a charity that provided housing for members of the OJC.

As part of the London borough's arrangements for allocating accommodation, AIHA would make some of its housing available to individuals who had applied to the council for social housing.

However, in line with its agreements with the charity, the council would only nominate potential tenants for properties operated by AIHA if they were members of the OJC. Therefore, the council did not put the applicant forward for consideration by AIHA.

In February 2018, the mother lodged proceedings against the council and AIHA, challenging both the housing association's housing criteria and the council's agreement with it on the grounds that they amounted to unlawful direct discrimination contrary to section 13 of the Equality Act 2010.

The claim was rejected by the divisional court, which noted that, due to social housing in the London borough being under severe pressure, disadvantages faced by the OJC in the housing sector were both "real and substantial".

These disadvantages included high levels of poverty which the Divisional Court found to be linked to their way of life, especially affecting employment and education opportunities; prejudice when renting in the private sector on account of their appearance, language and religion; and an exponential increase in anti-Semitic hate crime, giving rise to a pressing need for members of the OJC to live in close proximity to one another "with a view to reducing apprehension and anxiety regarding personal security, anti-Semitic abuse and crime".

According to the court, the traditional Orthodox Jewish clothing, which characterised the community, heightened the exposure to anti Semitism and to related criminality. Moreover, owing to their large family size, members of the OJC had a particular need for accommodation, likely to be in short supply, which was suited for larger family sizes and which would significantly reduce the particular and intensified risk to such families of eviction from overcrowded accommodation. The housing provided by AIHA catered to these needs, the court added.

In view of the above evidence, and having regard to statutory guidance issued by the Equality and Human Rights Commission, the court concluded that AIHA's housing allocation scheme, and hence the council's policy, was a proportionate means of achieving a legitimate aim and therefore justified under sections 158 and 193 of the 2010 Act (which provide defences to accusations of direct discrimination).

Finally, the court reiterated the fact that Orthodox Jewish applicants constituted almost 83% of Hackney's waiting list for accommodation with six or more bedrooms and 50% of those waiting for five-bedroom accommodation.

In those circumstances, given the acute scarcity of such accommodation, the court found it was understandable and proportionate that properties such as those operated by AIHA were allocated to members of the Orthodox Jewish community who had need of the accommodation.

The mother then contested the Divisional Court's findings at the Court of Appeal. The court found that the Divisional Court had appropriately assessed all of the available evidence pertaining to the "many and compelling" disadvantages suffered by the OJC and, on this basis, no flaw in the Divisional Court's analysis could be identified that would entitle the Court of Appeal to intervene.

An appeal to the Supreme Court was consequently lodged in October 2020. But Lord Sales, in giving the leading judgment, agreed that the Divisional Court had directed itself correctly as to the proportionality test to be applied; that it had made appropriate findings on the evidence before it; and that the Court of Appeal had been right to hold that there was no proper basis on which an appellate court could interfere with the Divisional Court's conclusion that AIHA's allocation policy was a proportionate means of achieving legitimate aims.

The applicant finally complained to the ECHR under Article 14 in conjunction with Article 8 of the Convention that the council's arrangements with AIHA and the relevant statutory framework discriminated against her on the basis of her non membership of the OJC without a reasonable or objective justification.

Article 8 of the Convention provides as follows:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Article 14 of the Convention provides:
"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

The ECHR considered that the difference in treatment flowing from the arrangement between the council and AIHA was objectively and reasonably justified. It noted that Article 14 of the Convention "does not prohibit a member State from treating groups differently in order to correct 'factual inequalities' between them".

"That was clearly at issue in the present case: in this regard, the Court notes that the Divisional Court addressed in great detail the significant hardship faced by the OJC in the private rental sector."

In particular, the ECHR echoed the Divisional Court's conclusions that members of the OJC faced high levels of poverty affecting employment and education opportunities; prejudice when renting in the private sector on account of their appearance, language and religion; and an exponential increase in anti-Semitic hate crime.

"Furthermore, the Court has repeatedly held that because the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy."

In the present case, the domestic courts carefully considered whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised by the arrangement between the council and AIHA, and at each level of jurisdiction they agreed that it was objectively and reasonably justified, the ECHR said.

"In equally detailed judgements both the Court of Appeal and the Supreme Court agreed that the Divisional Court had made appropriate findings on the basis of the evidence before it and that it had applied the correct proportionality exercise."

In light of this, the ECHR concluded that, in the circumstances of the case, the arrangement between the London borough and AIHA did not exceed the wide margin of appreciation the court affords to national authorities in such cases.

The ECHR unanimously declared the application inadmissible.

Adam Carey