Justification and proportionality of positive action in housing policies

R (on the application of Z) v London Borough of Hackney & Agudas Israel Housing Association Limited

The Court of Appeal held that a policy of restricting the provision of social housing to a certain religious community only was justified as a form of positive action, as it was a proportionate means of achieving the legitimate aim of the charity.

Facts

Agudas Israel Housing Association Limited (AIHA Ltd) is a charitable social housing provider in the London Borough of Hackney (Hackney), who provided social housing only to members of the Orthodox Jewish Community. The charity was set up with charitable objects to carry on for the benefit of the Orthodox Jewish Community and to provide housing and accommodation. The policy of AIHA Ltd and its arrangements with Hackney were such that only those from the Orthodox Jewish Community are nominated to AIHA Ltd for social housing.

The Claimant was a resident in Hackney and challenged the policy of both AIHA Ltd and Hackney.

It was accepted that AIHA Ltd's arrangements for allocating housing amounted to direct discrimination on the ground of religion because they treated less favourably those who were not members of the Orthodox Jewish community seeking housing. The question was whether that discrimination was justified.

The Divisional Court held that the discrimination was lawful. It was satisfied that there was a strong correlation between the evidenced poverty and deprivation and the Orthodox Jewish community. It found that the arrangements were a proportionate means of achieving a legitimate aim of overcoming this disadvantage in the Orthodox Jewish community, and that the arrangements for allocation of housing were authorised by the charitable objects of the housing provider to provide benefit to the Orthodox Jewish community. The policy was therefore permitted under the Equality Act and, since that discrimination was lawful, Hackney's allocation policy was also lawful.

On appeal to the Court of Appeal, the only question was whether this policy could be justified as proportionate.

The law

Section 158 Equality Act 2010 applies where a person reasonably thinks that:

• persons who share a protected characteristic suffer a disadvantage connected to the characteristic,
• persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, or
• participation in an activity by persons who share a protected characteristic is disproportionately low.

This section permits this positive action to be taken as a proportionate means of achieving the legitimate aim of:

• enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage,
• meeting those needs, or
• enabling persons who share the protected characteristic to participate in the activity.

Section 193(2) Equality Act 2010 provides that a person will not contravene equality legislation by restricting the provision of benefits to persons who share a protected characteristic if:

• the person acts in pursuance of a charitable instrument, and
• the provision of the benefits is (a) a proportionate means of achieving a legitimate aim, or (b) for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic.

Outcome

The Court of Appeal dismissed the appeal and held that the housing policy was permitted under the Equality Act.

In relation to section 193 of the Equality Act, the Court noted that while s.193(2)(a) requires proportionality, s.193(2)(b) is an alternative means of justification and does not require proportionality where the act is in pursuance of a charitable instrument and the purpose of the benefit is to prevent disadvantage related to the protected characteristic, which it was in this case.

In considering how AIHA Ltd’s policy was proportionate, the Court of Appeal stated it was clear there was many difficulties facing the Orthodox Jewish community that could be addressed and minimised by the social housing policy of AIHA Ltd and while there was an impact on the pool of properties available to other groups within Hackney, this was small compared to the positive impact on the Orthodox Jewish community in adopting this housing policy. It also noted that the allocation of properties to non-members of the Orthodox Jewish community would fundamentally undermine AIHA Ltd's charitable objectives, meaning there was no more limited way of achieving the legitimate aim and the allocation policy was proportionate.

Implications

It could be argued that this judgment is dependent on the specific facts of the case.

However, what is clear is that a policy of providing a benefit only to a very specific community defined by a protected characteristic can be justified where there are clear charitable objects indicating this action, and the positive action is either a proportionate means of achieving a legitimate aim, or has the purpose of meeting these charitable objects and is aimed at preventing this disadvantage. If charities are undertaking work that could fall foul of the Equality Act, it would be prudent to review the charitable objects to ensure that they support any practices that could be seen as discriminatory.