The Queen (on the application of Z and Another) v London Borough of Hackney
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lady Justice King,Sir Stephen Richards |
| Judgment Date | 27 June 2019 |
| Neutral Citation | [2019] EWCA Civ 1099 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2019/0398 |
| Date | 27 June 2019 |
[2019] EWCA Civ 1099
Lord Justice Lewison
Lady Justice King
and
Sir Stephen Richards
Case No: C1/2019/0398
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION DIVISIONAL COURT
LORD JUSTICE LINDBLOM; SIR KENNETH PARKER
CO/667/2018
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Ian Wise QC & Mr Michael Armitage (instructed by Hopkin Murray Beskine) for the Appellants
Mr Matt Hutchings QC (instructed by Hackney Legal Services) for the First Respondent
Mr Christopher Baker & Ms Rea Murray (instructed by Asserson Law Offices) for the Second Respondent
Hearing dates: 12 th and 13 th June 2019
Approved Judgment
Introduction
The Agudas Israel Housing Association (“AIHA”) is a charitable housing association, registered as a smaller private provider of social housing. It owns property in Hackney, principally in parts of the borough which are inhabited by members of the Orthodox Jewish (Haredi) community. Its charitable objects are set out in its rules which state:
“A2 The Association is formed for the benefit of the community. Its object shall be to carry on for the benefit of the community (and primarily for the benefit of the Orthodox Jewish Community):
A2.1 the business of providing housing, accommodation, and assistance to help house people and associated facilities and amenities for poor people or for the relief of the aged, disabled, handicapped (whether physically or mentally) or chronically sick people.
A2.2 any other charitable object that can be carried out by an Industrial and Provident Society registered as a social landlord with the Corporation.”
AIHA's arrangements for the allocation of social housing in accordance with its objects are such that, in current circumstances, properties owned or controlled by AIHA are allocated only to members of the Orthodox Jewish community. The Appellants challenge those arrangements. Hackney LBC has nomination rights to property owned by AIHA. In making its nominations, Hackney nominates applicants who fall within AIHA's criteria for allocating property. In practice, this means that Hackney only nominates members of the Orthodox Jewish community. In consequence, the Appellants challenge Hackney's policy. Although in form the challenge is one to Hackney's housing allocation policy, in substance it is primarily a challenge to AHIA's allocation policy.
It is common ground that AIHA's arrangements for allocating housing amount to direct discrimination on the ground of religion; because they treat less favourably those who are not members of the Orthodox Jewish community seeking housing, than those who are. The question on this appeal is whether that discrimination is lawful. The Divisional Court (Lindblom LJ and Sir Kenneth Parker) held that it was. They based their decision on two grounds. First, the arrangements were a proportionate means of overcoming a disadvantage shared by members of the Orthodox Jewish community, and hence permitted by section 158 of the Equality Act 2010. Second, the arrangements were made pursuant to a charitable instrument, and were either a proportionate means of achieving a legitimate aim; or were for the purpose of compensating for a disadvantage linked to a protected characteristic. Thus, they were permitted by section 193 of the Act. Since that discrimination was lawful, Hackney's allocation policy was also lawful. The Divisional Court's judgment is at [2019] EWHC 139 (Admin). The Divisional Court gave judgment on 4 February 2019; and the appeal was heard in this court less than five months later.
The EU background
Directive 2000/43 (the Race Directive) enshrines the principle of equal treatment, described in article 2 as meaning “that there shall be no direct or indirect discrimination based on racial or ethnic origin.”. Article 3 provides that the Directive applies to “to all persons, as regards both the public and private sectors” in relation to a number of matters, including:
“access to and supply of goods and services which are available to the public, including housing.”
Article 5 provides:
“With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin.”
Article 21 of the Charter of Fundamental Rights of the European Union prohibits any discrimination based on a number of grounds, including race, colour, ethnic or social origin and religion or belief. Article 51 of the Charter confines its application to member states “only when they are implementing Union law”.
The domestic legislative framework
Direct discrimination is defined by section 13 of the Equality Act 2010. The definition excludes discrimination on the ground of age (but not on the ground of religion), if it is a proportionate means of achieving a legitimate aim. Indirect discrimination is defined by section 19. Indirect discrimination may be justified if it is a proportionate means of achieving a legitimate aim. Service providers, and persons exercising public functions are prohibited from discriminating, whether directly or indirectly: section 29.
Section 158 provides:
“(1) This section applies if a person (P) reasonably thinks that –
(a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic,
(b) persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, or
(c) participation in an activity by persons who share a protected characteristic is disproportionately low.
(2) This Act does not prohibit P from taking any action which is a proportionate means of achieving the aim of –
(a) enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage,
(b) meeting those needs, or
(c) enabling or encouraging persons who share the protected characteristic to participate in that activity.”
Section 193 provides:
“(1) A person does not contravene this Act only by restricting the provision of benefits to persons who share a protected characteristic if –
(a) the person acts in pursuance of a charitable instrument, and
(b) the provision of the benefits is within subsection (2).
(2) The provision of benefits is within this subsection if it 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.”
Religion and race are protected characteristics. Section 194 (2) provides:
“(2) That section [i.e. section 193] does not apply to race, so far as relating to colour.”
Success under either of these sections would be enough for AIHA.
The Equality and Human Rights Commission has the power to issue codes of guidance. The court must take any such code into account in any way in which it appears to the court to be relevant: Equality Act 2006, s 15 (4)(b).
The facts
Z is a single mother with four children, including RS, who has autism. They are not members of the Orthodox Jewish community. Z grew up and lives in Hackney; and embraces the diversity of the local community. The family were assessed by Hackney as having the highest possible need for re-housing under its scheme for the allocation of social housing in the borough. In October 2017 Hackney agreed to make Z a ‘direct offer’ of its next available unit of suitable social housing. Following the birth of her twin daughters in July 2018, Z was moved to the direct offer list for a four-bedroom property. Despite Hackney's recognition of the family's need for suitable social housing, no direct offer of a suitable property was made by the time the case came before the Divisional Court. During the same period, at least six four-bedroom properties owned by AIHA became available and were advertised by Hackney. However, because of AIHA's practice of only letting its properties to members of the Orthodox Jewish community, Hackney did not put Z forward for consideration; although they expressed a willingness to do so.
Fortunately, since the hearing in the Divisional Court Z and her family have been satisfactorily housed.
Alongside details of housing and income, AIHA's housing application form asks, solely for monitoring purposes, whether applicants would describe themselves as “Orthodox Jewish – strictly observant of Shabbath and Kashrut” as well as for details of their synagogue and their children's schools. The form also asks applicants to choose between “Orthodox Jewish Ashkenazy” and “Orthodox Jewish Sephardic” under the heading “Ethnic Origin”, and whether they are white, black, mixed, or other under “Colour”. Some of AIHA's lettings are made through Hackney's nomination arrangements; but they maintain their own separate waiting list as well. So far as the former are concerned, where a property is advertised on Hackney's portal it is accompanied by the rubric:
“Consideration only to the Orthodox Jewish community.”
AIHA owns 470 properties in Hackney. They amount to 1 per cent of the overall number of 47,000 units of general needs housing in Hackney; and its lettings each year are on average less than 1 per cent of social housing lettings.
The Jewish population in the United Kingdom is contracting and the average age is increasing. At the same time, the strictly Orthodox Jewish community (Haredim) is growing at 4 per cent per year, with 34 per cent of Jews in Hackney aged 14 or under. Strictly Orthodox Jews are more likely to experience poverty and deprivation than other “mainstream” Jewish families. Jewish...
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