Legal update
compensating for a disadvantage linked to the protected characteristic.
The defendant charity, AIHA, argued it could rely on both of these statutory defences. The Supreme Court was directed to three issues.
The first was whether the policy of AIHA was a proportionate means of achieving a legitimate aim. If those policies were found to be proportionate, then the claim of unlawful discrimination brought by the mother would not be successful.
The second question was whether the charity exemption in Section 193 - i.e. the provision of benefits for the purpose of preventing or compensating for a disadvantage linked to the protected characteristics - was also subject to a proportionality condition? If there was no requirement for proportionality, then again the mother’s claim of unlawful discrimination would fail because it was clear that the policies of AIHA were specifically intended to prevent or compensate for a disadvantage linked to a protected characteristic.
The third question was whether or not the charity’s policy involved direct discrimination against ethnic origin - as opposed to religion - that would be unlawful under the ‘Race Directive’ (EU directive 2000/43).
The Supreme Court found the policy did not involve such direct
discrimination and that it was possible to make a distinction between a charity which based its policies on membership of or observance of a particular faith, in this case, Orthodox Judaism, and a charity which based its policies on the grounds of ethnic origin.
The first would not be unlawful under the Race Directive, whereas the second would be. AHIA’s policies were based on observance of Orthodox Judaism and did not require those seeking housing to be of Jewish ethnicity.
On the question of proportionality, the Supreme Court found AIHA’s policy was proportionate for the purposes of both Sections of the Act. The Orthodox Jewish community suffered from high levels of poverty and low levels of home ownership.
In Lord Sales’ judgment, he refers to the findings of the lower Divisional Court - prior to the appeal to the Supreme Court - that social housing was in severe pressure in the Hackney Council area, with demand far exceeding supply. Also, Orthodox Jews were far more likely to be in rented accommodation than the general Jewish population, and 25 per cent of them lived in overcrowded conditions compared with eight per cent of the general Jewish population. Most of the Orthodox Jewish community were unwilling to live outside Stamford Hill - where AIHA’s properties were located - and tended not to bid for social housing elsewhere in Hackney Council’s area. Nearly all of the Orthodox Jewish community in social housing within Hackney were tenants of AIHA. The Orthodox Jewish community had a particular need for larger properties because of their large families. The Orthodox Jewish community was subjected to anti-Semitism, including racially aggravated harassment and assaults, criminal damage to property and verbal abuse.
Indeed, volunteer security patrols in Stanford Hill were required to provide physical assurance and help to deter anti-Semitic incidents, and that gave
members of that community a sense of security. The Orthodox Jewish community also faces prejudice when trying to rent out properties in the private sector, on account of their appearance, language and religion.
AIHA’s properties were also
specifically designed for Orthodox Jewish religious needs so that they could follow the tenets of their faith and rules relating to the Sabbath. For example, the AIHA properties provided kosher kitchens, and the absence of television aerials. The Supreme Court therefore held that the AIHA allocation policy for housing was a legitimate and proportionate means of meeting the needs of the Orthodox Jewish community in correcting disadvantages. The housing allocation policy of AIHA also stated that - if there was an excess of housing over demand from the Orthodox Jewish community - those properties would be allocated outside of the community, although in practice demand far exceeded supply. The Court also considered whether under the charities exemption to the 2010 Equality Act, under Section 192, the provision of benefits for the purpose of preventing or compensation for a disadvantage linked to a ‘protected characteristic’, had to be subject to proportionality. The Court found that there was no such requirement for proportionality.
The ‘bright line’ approach The Court went on to discuss how housing providers can act in such situations and that organisations could take a group-based approach. The Court compared the situation of the state provision of social welfare benefits, where it is well established that a legitimate approach, and in accordance with the principle of proportionality, is for the state to use so-called bright line criteria to govern the availability of those benefits.
For example, the state could focus provision of social welfare benefits on a particular group, and therefore exclude other groups, even though there may be little or no difference at the margins in terms of need between some particular individual in the first group, and another particular individual in the excluded group. The Court said that use of these bright line criteria was justified, because it minimised the costs of administration of a social welfare scheme, and could be the best way of ensuring resources are efficiently directed to the group that needs them the most.
January 2021 •
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