Scheme for allocation of social housing

February 6th, 2019

R (Z and others) v Hackney LBC and Agudas Israel Housing Association (2019) EWHC 139 (Admin) challenged the arrangements made by AIHA for the allocation of social housing properties owned or controlled by AIHA, which in present circumstances in effect preclude any persons who are not members of the Orthodox Jewish community from becoming tenants of such properties. The claim also challenges the lawfulness of Hackney’s arrangements as a local housing authority for the nomination of applicants to these properties, which again in present circumstances in effect precludes any persons who are not members of the Orthodox Jewish community from receiving nominations for the properties owned by AIHA. In short, the claimants contended that these arrangements discriminated against them because they are not members of the Orthodox Jewish community, and are unlawful, principally, under the Equality Act 2010.The Divisional Court, Lindblom LJ and Sir Kenneth Parker, considered it appropriate (paragraph 47) to consider first the question whether AIHA’s arrangements for the allocation of social housing accommodation in Hackney have been, and remain, lawful. They took that course partly because Hackney accepted that the lawfulness of AIHA’s relevant arrangements was a necessary condition for the lawfulness of Hackney’s arrangements for the nomination of AIHA’s social housing properties. Hackney submitted that the lawfulness of AIHA’s relevant arrangements was in effect a sufficient condition for the lawfulness of Hackney’s arrangements for the nomination of AIHA’s properties. It was a necessary condition because Hackney would contravene Section 112 of the 2010 Act if it knew, or at least had been put on notice, that AIHA’s arrangements were unlawful and, by nominating AIHA’s properties, thereby helped AIHA to contravene the relevant provisions of the 2010 Act.

As to the challenge against AIHA’s arrangements under the 2010 Act, it was common ground that AIHA’s relevant arrangements on any view involve direct discrimination, as defined by Section 13(1) of the 2010 Act. AIHA’s conduct in “primarily” allocating social housing properties to the Orthodox Jewish community, because of the protected characteristic of religion, treats less favourably those persons who seek such allocation but who are not members of that community. AIHA also accepted that AIHA was a “service-provider”, within the meaning of Section 29 of the 2010 Act, and that AIHA accordingly discriminated under that Section against persons, such as the claimants, insofar as it did not provide the relevant “service” to them because they were not members of the Orthodox Jewish community.

AIHA contended in any event that its discriminatory conduct is rendered lawful, both by Section 158 and also by Section 193 of the 2010 Act.

In Part II (Advancement of Equality) of the 2010 Act, Section 158 specifies the conditions that justify taking “positive action”, as follows:-

“(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.”

As regards Section 158, the Divisional Court said:-

“63.    We observe, first, that under section 158(1)(a) the sole limitation on the relevant “disadvantage” is that the disadvantage must be connected to (in this case) the religion of Orthodox Judaism. It is plain from the evidence … that the disadvantages faced by Orthodox Jews are both real and substantial.

  1. First, there are very high levels of poverty and deprivation, with associated low levels of home ownership. Section 158(1)(a) does not stipulate that a relevant disadvantage need be caused by the protected characteristic. Parliament has used a somewhat looser term – “connected to the characteristic” – which, in our view, invites a broader and more holistic investigation. On the evidence before us, we are satisfied that, applying that approach, there is a strong correlation between the evidenced poverty and deprivation and the religion. This is explained in part by the way of life, especially affecting educational and employment opportunities, which is characteristic of the Orthodox Jewish community.
  2. In any event there are in this case disadvantages which, on any view, are “connected to” the religion of Orthodox Judaism.
  3. We refer again, in particular, to the widespread and increasing overt anti-Semitism in our society, and to the 44.5% increase in reported anti-Semitic crime between 2014 and 2016, with 10% of such crimes involving violence. The traditional Orthodox Jewish clothing, which characterises the community, heightens the exposure to anti-Semitism and to related criminality. …
  4. Secondly, under section 158(1)(b) the sole limitation on the relevant “need” is that of being “different” from the needs of persons who do not share the protected characteristic. In our view, the evidence again demonstrates that the “needs” of the Orthodox Jewish community are indeed different. For the reasons we have just set out, the members of that community have a relevant need to live relatively close to each other, with a view to reducing apprehension and anxiety regarding personal security, anti-Semitic abuse and crime.
  5. There was also evidence before us of the relevant need for family and community facilities, such as schools, synagogue and shops, as well as the special features of the accommodation already mentioned. …”

“71.    We are satisfied … that AIHA’s arrangements for allocating housing, which place Orthodox Jews in a primary position, enable them both to avoid the disadvantages and to meet the needs to which we have referred. The remaining question is whether they do so in a “proportionate” manner.”

“74.    … Given the limited availability to, and pressing demand from, that community, if AIHA were to allocate any of its properties to non-members, it would seriously dilute the number of properties available to Orthodox Jews, and would fundamentally undermine its charitable objective of giving “primary” position, in a meaningful, as distinct from formalistic, sense to Orthodox Jews.

  1. We also conclude that AIHA’s arrangements are justified as proportionate under section 158. For the reasons we have already given, the disadvantages and needs of the Orthodox Jewish community are many and compelling. They are also in many instances very closely related to the matter of housing accommodation. We recognise the needs of other applicants for social housing, but, in the particular market conditions to which we have referred, AIHA’s arrangements are proportionate in addressing the needs and disadvantages of the Orthodox Jewish Community, notwithstanding the fact that in those market conditions, a non-member cannot realistically expect AIHA to allocate to him or her any property that becomes available.”

“78.    We emphasise that the proportionality analysis is specific to the particular arrangements under challenge. … It should not be assumed that the result of the proportionality analysis that we have conducted would be the same in a case having not dissimilar features to this, but where the service provider enjoyed a large share of whatever was considered to be the relevant market for the goods, services or other resources being provided.”

Turning to Section 193 of the 2010 Act, the charities exemption, the Court said:-

“84.    Having concluded that AIHA’s arrangements are lawful under section 158 of the 2010 Act, we do not strictly need to consider the application of section 193. However, we have heard full argument on this issue, and AIHA put section 193 at the forefront of its case. We believe, therefore, that it is appropriate to consider the lawfulness of AIHA’s arrangements also under this provision.”

“94.    In our view, the expression “in pursuance of”, in its ordinary and natural meaning means simply “authorised by”, “in line with” or “in accordance with” …

  1. The explanatory notes to the 2010 Act, which are a legitimate guide to interpretation, state at paragraph 608:

“This section [section 193] allows charities to provide benefits only to people who share the same protected characteristic…. If this is in line with their charitable instrument …” (emphasis added).

  1. Similarly, the Code of Practice at paragraph 13.31 effectively translates “in pursuance of” to mean “in accordance with” …
  2. We accept that, if the legislative purpose requires, the wide and ordinary meaning of “in pursuance of”, as explained above, can be displaced in favour of a narrower, stricter and, on one view, rather strained meaning. …”

“100.  In the present case the application of the natural and ordinary meaning to “in pursuance of” does not … immunise AIHA’s arrangements, or any arrangements under section 193, from scrutiny under the proportionality test. It is no more than a threshold criterion, along with others, which enables AIHA, or other charities falling within section 153, to justify those arrangements as proportionate under section 193(2).

“101.  For these reasons, we conclude that “in pursuance of” means no more than “in line with”, “in accordance with” or “authorised by”.”

“103.  Both sides agreed that, as to substance, there was very substantial, if not complete, overlap between section 158(1) and (2) and section 193(2) of the 2010 Act. Section 193(2)(a) refers to the provision of benefits needing to be “a proportionate means of achieving a legitimate aim”, and section 193(2)(b) of such provision needing to be “for the purposes of preventing or compensating for a disadvantage linked to the protected characteristic”.

  1. We believe that, in our analysis of the application of section 158(1) and (2), we have already dealt exhaustively with all matters that are relevant to the analysis under section 193. … We would simply be repeating what has gone before if we embarked on any detailed consideration of the application of section 193. It is sufficient to record, for the reasons already given in relation to section 158, that we conclude that AIHA has met the criteria under section 193…”

As regards the challenge against Hackney under the 2010 Act, the Court said:-

“111.  … the claimants do not challenge as unlawful any aspect of either Hackney’s scheme for letting social housing or of the nomination agreement with AIHA.

  1. The real thrust of the claimants’ case is in respect of the discriminatory nature of AIHA’s arrangements, which we have already examined in full. …

 

  1. In other words, the core of the claim is that Hackney may not lawfully nominate AIHA properties to applicants, knowing or believing that AIHA in present circumstances is certain to allocate available properties only to members of the Orthodox Jewish community. However, once it is established, as it has been established by our discussion of the case against AIHA, that AIHA is legally entitled, under section 158 and/or section 193 of the 2010 Act, to discriminate in the allocation of its available properties in favour of members of the Orthodox Jewish community, the core of the claimants’ real case perforce dissolves.

 

  1. Provided that AIHA is acting lawfully in the relevant respect, Hackney simply has no legal right or power, even if it were so minded, to insist that AIHA jettison its lawful arrangements, and to make allocation decisions without regard to those arrangements. AIHA has a “duty to co-operate”, but it has not been suggested, nor could it be sensibly suggested, that AIHA would act “unreasonably” in so far as it insisted, as it currently insists, on applying arrangements that are perfectly lawful under the 2010 Act. AIHA is co-operating with Hackney in a manner that is consistent with its own lawful arrangements.”

The claimants’ case that Hackney had failed to comply with relevant principles of public law and their challenge under Section 11 of the Children Act 2004 also failed: respectively paragraphs 121 and 128.

The claim for judicial review was dismissed.

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