Social Housing Speed Read – Z & A v London Borough of Hackney and Agudas Israel Housing Association Ltd

Background

Z was a single mother based in Stamford Hill, Hackney. She had four children, one of whom suffered from severe autism, and was assessed by Hackney Council as “having the highest possible need for re-housing”. In October 2017, the Council agreed to make Z a “direct offer of its next available unit of suitable sociable housing”.

A few months later Z gave birth to twins, and in July 2018, the Council moved her to its direct offer list for a four-bedroom property.

At the time, Agudas Israel Housing Association Ltd (“Agudas”) had at least six four-bedroom properties available and these were being advertised by the Council for occupation.

However, Z was not considered for occupation of any of those properties because she fell outside the scope of Agudas’ allocations policy.

Z’s argument

Z brought an application for Judicial Review, alleging that Agudas’ policy was discriminatory and unlawful – she also claimed that the Council was allowing that discrimination.

In the High Court, it was accepted that Agudas’ policy amounted to direct discrimination on the grounds of religion, as it treated those who were not members of the Orthodox Jewish community less favourably than those who were.

However, Agudas argued that the discrimination was a proportionate means of achieving a legitimate aim, as its policy was necessary to alleviate the specific challenges faced by that community.

The High Court agreed with Agudas. It was satisfied that there was a strong correlation between poverty and deprivation in the Orthodox Jewish community and their religion, which especially affected educational and employment opportunities.

It also found that the allocations policy was a positive measure to alleviate disadvantage in accordance with section 158 of the Equality Act 2010. In addition, growing anti-semitism, both in terms of prejudice in the private rental market and general anti-semitic abuse, meant that the Orthodox Jewish community had different needs to those that did not share their protected characteristic, which included the need to live close together as a tight-knit community.

Z appealed to the Court of Appeal.

The Court of Appeal

Z argued that the High Court had misapplied the proportionality test and had failed to have regard to Article 8 of the European Convention on Human Rights in relation to the right to respect for a person’s home. Z also said that the Council had failed to promote the welfare of her children under the Children Act 2004. Z argued that the High Court had failed to properly consider evidence relating to hardship suffered by the Orthodox Jewish community in comparison to other communities, and that if it had done so it would not have found Agudas’ policy to be proportionate.

The Court of Appeal dismissed Z’s appeal:

• Article 8 did not entitle a person to be provided with a home, nor did it mean that a local authority was under an obligation to do provide someone with a home.
• The High Court had been “entitled to find that Agudas’ allocation policy was a proportionate means of achieving a legitimate aim”.
• There was no requirement to carry out a proportionality assessment as this would mean assessing the relative disadvantage of two different disadvantaged groups, which is specifically excluded by the Equality Act 2010.
• The court had been presented with “a mass of demographic and sociological evidence” which had been considered in reaching the original decision, in that Agudas had no more limited way of achieving its legitimate aim and so its discrimination had been proportionate.

Comment

Managing the challenges and disadvantages faced by different communities is difficult. This case does show that discrimination can be lawful when deciding how housing is to be allocated. However, there must be clear and legitimate reasons for that discrimination. The discrimination may not be justified if it is not proportionate – i.e. if it goes further than is necessary to alleviate the effects of a disadvantage to a particular group.

Housing providers should take care when applying their own policies – or even appearing to endorse others’ policies – where that might lead to a person or a group being treated less favourably because of any characteristics covered by the Equality Act. If discrimination cannot be avoided, there must be clear justification – particularly if it might become the subject of scrutiny before a Court.

If you have any questions on the above and its effect upon social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team.