Legal update
A ‘bright line’ for care homes
Tom Lumsden, a partner at solicitors CooperBurnett LLP in Tunbridge Wells in Kent, looks at a recent Supreme Court decision that might affect care home providers who offer accommodation to particular groups
In October, the Supreme Court gave what is a truly landmark judgment, in its first ever decision on ‘positive action’, by holding that it was lawful for a housing association - which was also a charity - to provide social housing primarily only to Orthodox Jews.
This decision is important for care home operators, some of which are charities and, in particular, those whose services are offered in preference to members of a group sharing a ‘protected characteristic’.
Case background
The case had been brought by a single mother of four children, who had been on the priority list for housing accommodation held by Hackney Council. In spite of there being six suitable homes available in the housing stock held by the defendant charity, the Agudas Israel Housing Association (AIHA), she was not put forward because the family were not members of the Orthodox Jewish community. The charity’s constitution stated that
the properties were only to be offered to those from within the Orthodox Jewish community. The mother argued that this amounted to direct discrimination - and
should therefore be held as being unlawful - because she and her family were being treated differently, and therefore less favourably, than an Orthodox Jewish family. The relevant ‘protected
characteristic’ on which she based her claim was that of religion, i.e. being a member of the Orthodox Jewish religion.
Discrimination under the Equality Act 2010
The mother’s claim was brought under the Equality Act 2010, which makes direct discrimination unlawful under Section 13 of the Act. Section 13 makes it clear that a person discriminates against another if, because of a ‘protected characteristic’, that person treats the other less favourably than he or she treats or would treat others.
There are however two exemptions in the Act where direct discrimination will
The Supreme Court held that the allocation policy for housing was a legitimate and proportionate means of meeting the needs of the Orthodox Jewish community in correcting disadvantages
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not be unlawful. These are found in Sections 158 and 193 of the 2010 Act. Section 158(2) states that the Act does not prevent a person from taking any action that 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. (c) Enabling or encouraging persons who share the protected characteristic to participate in that activity.
Section 193 of the Act applies to charities, and makes it clear that a person does not contravene the Act by restricting the provision of benefits to persons who share a protected characteristic if: (a) The person acts in pursuance of a charitable instrument, e.g. a charity’s governing documents.
(b) The provision of the benefits is within sub-section 2.
Sub-section 2 states that those benefits are within the sub-section if their provision is: (a) A proportionate means of achieving a legitimate aim.
(b) For the purpose of preventing or
www.thecarehomeenvironment.com • January 2021
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