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Ruling gives housing providers greater flexibility to favour specific minority groups
A landmark High Court ruling last week allows positive action to address housing disadvantage, explain legal experts Christopher Baker and Elliot Lister
The High Court has decided it was lawful under the Equality Act 2010 to operate a housing allocation system that had the effect of restricting tenancies to members of the Orthodox Jewish Community (OJC).
In a rare judicial review case involving the allocation system of a private registered provider, the court dismissed claims of racial and religious discrimination brought by non-Jewish families seeking scarce social housing.
The housing shortage, particularly for social housing and especially in London, is well known. Far less recognised, however, are the serious challenges faced by the OJC in securing access to housing.
Agudas Israel Housing Association (AIHA) is a small, Orthodox Jewish housing association. Its charitable objects provide for its activities to be carried out primarily for the benefit of the OJC.
Most of its properties are in Hackney in the Stamford Hill area, where the OJC is concentrated in one of the largest Orthodox Jewish communities in Europe, spread over four adjacent wards and making up about 30% of the general population.
The evidence was that OJC members will not consider moving from an established OJC – being part of an OJC is a prerequisite of Orthodox Jewish life.
Housing just a couple of wards away is not an option and OJC members choose overcrowded and unsuitable accommodation rather than risk being separated.
The court’s ruling makes sobering reading for its modern-day conclusions about overt and increasing anti-Semitism and recognition of prejudice in the private rented sector, among other factors making it difficult for the OJC to obtain even barely adequate or sufficient housing to meet their needs.
“The ruling is especially relevant in circumstances where limited and scarce resources such as housing are being shared out”
This was a groundbreaking decision on lawful ‘positive action’ and the charities ‘exception’ under sections 158 and 193 of the Equality Act 2010. It was one of the first decisions by the higher courts on these points.
The ruling is especially relevant in circumstances where limited and scarce resources such as housing are being shared out, but it will also be relevant in other contexts.
The decision affords greater flexibility to both charitable and non-charitable housing organisations to favour specific minority and protected groups without committing unlawful discrimination against other groups.
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The court recognised that the Equality Act did not require AIHA to dilute what it could do for the OJC by diverting any of its properties for allocation to people other than Orthodox Jews.
This is likely to assist particularly small and medium-sized providers focused on particular groups, whether, for example, religious, ethnic, disabled or having special needs.
“The court recognised that the Equality Act did not require AIHA to dilute what it could do for the Orthodox Jewish Community”
Often this will be a matter of size and scale. The court pointed out that the result might not have been the same if AIHA had enjoyed a “large share” of the market.
Each case is to be judged on its own merits. Under Section 158 (and in some respects under Section 193) this will require the action taken to be proportionate as between addressing the needs of the “clients” being assisted and the impact on other “non-clients” who do not benefit.
The evidence will accordingly be vital. Not all groups would be able to show the challenges of the OJC.
The arguments in this case also raised a fundamental question about the legal status of private registered providers of social housing. In the Weaver/L&Q case in 2009, generally found applicable to the provision and repossession of social housing by housing associations, it was decided that such bodies acted as “public authorities” for Human Rights Act 1998 purposes and were amenable to judicial review.
In the present case, the court did not find it necessary to decide whether Weaver remains good law following de-regulation; the point remains to be decided.
Christopher Baker, barrister, 4-5 Gray’s Inn Square; and Elliot Lister, partner, Asserson. They acted for AIHA in the case.
