The Supreme Court has held in R v Hackney London Borough Council and Agudas Israel Housing Association that a charity's policy of making social housing available primarily for members of the Orthodox Jewish community was not in contravention of the Equality Act 2010 (EqA 2010).
The applicant was identified by Hackney Council as a priority for new accommodation, but although six properties were available in Agudas Israel Housing Association's (AIHA) housing stock she was not put forward for any of them. The applicant and her children were not put forward because they were not members of the Orthodox Jewish community and AIHA, in line with its governing documents, only made properties available to people from that community.The applicant argued that this constituted unlawful direct discrimination as the family were treated less favourably than an Orthodox Jewish family because they did not share their religion (the protected characteristic).
AIHA's allocation policy was accepted as being directly discriminatory, but it fell within an exemption in the EqA 2010 which provides that such action is allowed if it is a proportionate means of alleviating the disadvantage experienced by people who share a protected characteristic, reducing their under-representation in relation to particular activities and/or meeting their needs. Here it was held that the Orthodox Jewish community had high levels of poverty and low levels of home ownership, and often faced prejudice in the private rental sector which were connected to their protected characteristic of religion. They also had specific needs which included needing to live relatively close to each other and needing larger than average housing in order to accommodate larger than average families. The policy was therefore a legitimate and proportionate means of meeting the needs of the Orthodox Jewish community and seeking to correct the disadvantages suffered by them. The Supreme Court also noted that the AIHA policy stipulated that if there was a surplus of housing beyond the Orthodox Jewish community, these properties would be allocated to those outside the community.
In addition the Supreme Court ruled that AIHA's policy fell within the charities exemption which provides that a charity restricting provision of benefit to people sharing a protected characteristic will not contravene the EqA 2010 if it is a proportionate means of achieving a legitimate aim or if for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic.
Take note: The decision in this case demonstrates that, provided that it can be shown that action taken to alleviate the disadvantage experienced by people sharing a protected characteristic, reducing their under-representation and/or meeting their needs is proportionate and legitimate, it will not fall foul of the discrimination provisions in the EqA 2010. Here it was clear that the Orthodox Jewish community experienced a disadvantage in relation to their protected characteristic of religion, which others, not sharing their protected characteristic, did not.
