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Cases

Supreme Court to hear case about charities exemption and positive action as defences to direct discrimination in the allocation of social housing

10.12.2019

The Supreme Court has granted permission for a challenge to Agudas Israel Housing Association's policy of allocating its properties primarily to members of the Orthodox Jewish Community.

The case will now proceed to a full hearing before the Supreme Court. The Supreme Court refused permission to appeal in relation to separate challenges to the London Borough of Hackney's nomination arrangements with Agudas Israel HA.

Agudas Israel HA and the London Borough of Hackney won in both the Divisional Court and in the Court of Appeal.

The case before the Supreme Court will focus on two main issues:

  • The charities exemption in s.193 of the Equality Act 2010

  • The defence of positive action under s.158 of the Equality Act 2010

This will be the first time that the Supreme Court has considered these provisions of the Equality Act 2010.

Although Agudas Israel HA's allocation policy amounts to direct discrimination on the ground of religion, the Court of Appeal held that it was justified, inter alia, because:

  • The disadvantage to non-members of the Orthodox Jewish community was the withdrawal of 1 per cent of the potentially available units of social housing within Hackney.

  • The scale of that disadvantage was minuscule.

  • The needs of the Orthodox Jewish community linked to the relevant protected characteristic were many and compelling.

  • The allocation of properties to non-members of the Orthodox Jewish community would fundamentally undermine Agudas Israel's charitable objectives.

Weighing these factors together, Agudas Israel's allocation policy was proportionate.

Before the Supreme Court, as before the lower courts, the London Borough of Hackney intends to support the work of Agudas Israel HA, as it provides much-needed social housing for a specific community in considerable housing need, as part of the overall supply of social housing within the borough.

Matt Hutchings QC acted for the London Borough of Hackney before the Divisional Court ([2019] PTSR 985), the Court of Appeal ([2019] HLR 44) and now represents Hackney before the Supreme Court.