Iris Ferber: The recent Supreme Court decision in R (on the application of Z) v Hackney LBC; Agudas Israel Housing Association Ltd [2020] UKSC 40: Positive Discrimination in Housing Allocation

The Supreme Court does not consider fundamental aspects of the Equality Act 2010 very often these days – much of the law of discrimination has been settled over the last 10 years, and in the 35 years of pre-2010 discrimination legislation.

So the case of Z v Hackney LBC is particularly interesting: not only because it does precisely that – consider a basic question of law arising under a little-used section of the Equality Act 2010 – but also because it is yet another example of the Supreme Court weighing up the competing interests of different vulnerable groups.

What is the case about?

Agudas Israel Housing Association (AIHA) is a charity whose objective is to provide housing to Orthodox Jewish families in Stamford Hill.  Hackney is the local housing authority, and it nominates applicants for social housing to AIHA, so long as they meet AIHA’s selection criteria, which are based on that charitable objective.

Z is a single mother with 4 young children, two of whom have autism; she is not Jewish.  She was on Hackney’s waiting list for a large property, and while she was waiting to be housed, large houses owned by AIHA became vacant and were allocated by Hackney to Orthodox Jewish families on the waiting list, rather than to her.

She brought a claim, arguing that that amounted to direct discrimination against her on the grounds of her religion and race.  The High Court and the Court of Appeal disagreed with her, and she appealed to the Supreme Court.

What did the Court decide?

The Supreme Court held that AIHA – and therefore Hackney – had not acted unlawfully in imposing conditions on the allocation of charitable housing stock to Orthodox Jewish families.

Although prima facie such conditions were discriminatory, the policy both fell within the “positive action” exemption in section 158 of the Equality Act 2010, and also within the “charities” exemption in section 193(2) of the Equality Act 2010.

Comment

Section 158 allows positive action in very specific circumstances:

- The putative discriminator must reasonably think:

(a)    that persons who share a particular protected characteristic suffer a disadvantage connected to that characteristic; or

(b)   that those persons have needs that are different from the needs of those who do not share the protected characteristic; or

(c)    that participation in an activity by persons who share the protected characteristic is disproportionately low;

- The putative discriminator is then permitted to take action with the aim of:

(a)    enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage; or

(b)   meeting those needs; or

(c)    enabling or encouraging persons who share the protected characteristic to participate in that activity; and

- The action must be a proportionate means of achieving one of those aims.

Similarly, section 193(2)(a) allows a charity to restrict the provision of benefits to persons who share a particular protected characteristic, so long as that restriction is in pursuance of its charitable objective, and is a proportionate means of achieving a legitimate aim.

Alternatively, section 193(2)(b) allows a charity to restrict the provision of benefits to persons who share a particular protected characteristic (again, so long as that restriction is in pursuance of its charitable objective) if the restriction is for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic.

AIHA had presented detailed evidence about the disadvantages suffered by members of the Orthodox Jewish community in relation to housing, and their particular needs in respect of housing, and had also presented detailed evidence on proportionality.

The judgment of Lord Sales is worth reading for its detailed description of that evidence: a lesson in the importance of careful and thorough presentation of evidence at first instance, to cover every single part of the legal test that your client has to meet (rather than trying to fix a lack of evidence at the appeal stage: never an easy task).

Some fundamental legal take-aways:

(1)   A first instance assessment of proportionality is not to be disturbed, unless the Court at first instance misdirected itself, or reached a decision which was wrong.

(2)   There is no proportionality assessment in section 193(2)(b), and no basis for reading one into the words chosen by Parliament: the two limbs of section 193(2) are alternatives, and only limb (a) involves a proportionality assessment.

(3)   Differential treatment based on religious observance (here, Orthodox Judaism) does not amount to discrimination on the grounds of race or ethnic origin.

2nd Nov 2020

Iris Ferber KC

Call 2005 | Silk 2023