Following the High Court's decision that it was lawful for a Jewish housing association to restrict its housing stock to Orthodox Jews, Jack Parker analyses its possible ramifications for "positive action" on the part of housing associations, local authorities and others to meet the needs of disadvantaged groups in the provision of services.
In R(Z) v Hackney LBC & Agudas Israel Housing Association  EWHC 139 (Admin), the Court analysed whether, despite being discriminatory, the housing association's policy of allocating housing solely to Orthodox Jews was lawful by virtue of section 158 of the Equality Act 2010 as a "proportionate means" of achieving the aim of (a) enabling people to overcome/minimise disadvantage connected with being a member of the Orthodox Jewish community; and (b) meeting their particular needs.
The Court took into account a number of factors in its decision to uphold the policy as lawful (see paras 63 – 71 of the Judgment).
- First, there were very high levels of poverty and deprivation among the community with associated low levels of home ownership and high levels of overcrowding by comparison to the local area. The fact that those problems were not "caused" by religion did not mean they could not be taken into account because section 158 asked only whether those matters were "connected with" the particular characteristic in question.
- Second, there was widespread anti-Semitism and a 44.5% increase in reported anti-Semitic crime between 2014 and 2016, with 10% of such crimes involving violence. This gave rise to a need for members of the community to live relatively close to each other, with a view to reducing apprehension and anxiety regarding personal security, anti-Semitic abuse and crime.
- Third, there was a relevant need for family and community facilities, such as schools, synagogue and shops as well as the particular features of the properties themselves, including, for example, kosher kitchens. Irrespective of whether such matters were merely outward manifestations of Orthodox Judaism and irrespective of whether they were merely desirable as opposed to necessary, they were nonetheless "needs" for the purpose of section 158. Taken together, the Court found that the policy enabled Orthodox Jews both to avoid the disadvantages connected with their religion and to meet their needs.
The court dismissed the suggestion the policy was a "blanket" one and therefore disproportionate. The policy itself expressed its "primary aim" to be housing members of the Orthodox community but there was no absolute exclusion of non-members. Although the practical effect of the policy (given the huge imbalance between the supply and demand of housing) was to limit allocation to Orthodox Jews, it was nonetheless proportionate given the many and compelling disadvantages and needs of the community (see paras 71 – 83).
It followed from the Court's conclusions that the nomination by Hackney of properties to applicants was lawful.
As to the possible ramifications of the Judgment, on the one hand, the Court's conclusions show that, at least theoretically, a broad range of considerations will be relevant in determining whether disadvantages or needs are the result of a particular characteristic so as to justify positive action to address them.
No causative relationship is required and matters such as poverty or victimisation may, if there is an evidential connection with the group in question, be sufficient to justify positive action. Equally, the "needs" of a particular group are not restricted to "fundamental" aspects of the characteristic in question but may include customs and practices associated with it. As to the proportionality requirement, so long as the policy is not worded in such a way as to impose a blanket requirement, the fact that it may do so in practice is not fatal to its lawfulness.
However, there is little empirical evidence as to how many service providers do undertake positive action and still less about how many providers would take such action but for concerns about the breach of the Equality Act duties.
The Court's analysis shows that there needs to be compelling evidence of disadvantages and needs not merely by reference to the local population in general terms but by reference to the needs of people who would otherwise be entitled to the service (who are likely to have significant needs of in their own right) before positive action can be justified.
Here, the Claimant was a single mother, suffering from anxiety and depression, with four children: two sons including RS, diagnosed with autism spectrum disorder, and twin daughters born in July 2018. She was currently living in temporary accommodation, had lived in Stamford Hill her whole life and embraced the diversity of the local community (having been fostered by a Jewish mother). Her mother lived nearby on whom she relied heavily for support with the children. While the disadvantages and needs of the Orthodox community were found to outweigh the Claimant's needs and disadvantages, such conclusions will not be lightly drawn.
The Court was also at pains to emphasise that the proportionality of such policies was highly fact specific and that the size of the housing association in question (which had only 470 properties and let less than 1% social housing lettings in the area) was directly relevant to the issue. A provider with a larger market share may not be able to justify an otherwise identical discriminatory policy. Policies of broad application will be far more difficult to justify.
While the decision may lead some interest groups to look again at how their provision of services can best meet the needs of their community, it is questionable whether its ramifications will be of any widespread practical, as opposed to legal significance.
Jack Parker is experienced in all manner of public law and Equality Act matters. Matt Hutchings QC appeared on behalf of Hackney LBC.