Adam Furze discusses the recent Supreme Court case: R (on the application of Z and another) v Hackney London Borough Council and another

Article by Adam Furze

This was an appeal from the Court of Appeal by a mother of four young children who brought a claim of unlawful discrimination on the grounds of race and religion. She was denied social housing by Agudas Israel Housing Association Ltd (“AIHA”) as she is not an orthodox Jew.

The appellant applied online for social housing in her local area as she had three children and was pregnant with her fourth. She was placed on a waiting list until a big enough property became available. At the same time, Orthodox Jewish families were granted larger housing by AIHA which is a charity which provides social housing for the orthodox Jewish community.

The orthodox Jewish community in Stamford Hill live in an extremely deprived area. There is a huge problem with overcrowding, on average there is 6.3 people per house in the Jewish community compared with 2.43 for the rest of Hackney. The community has been subject to antisemitic attacks and they regularly face prejudice when trying to rent houses in the private sector. AIHA was set up to provide properties for the orthodox Jewish Community so they can practise their strict religious needs and observe the sabbath. Their properties have been adapted to have kosher kitchens, no television aerials and the properties have been built near Jewish faith schools, synagogues, and suitable shops. It was acknowledged by the court that the orthodox Jewish faith is a way of life, not just a religious belief.

The appellant brought a claim for unlawful discrimination under the Equality Act 2010. Race and religion are protected characteristics under the Act. However, the Equality Act permits lawful discrimination in some instances where a group of people with a shared protected characteristic are affected more than another group without the protected characteristic. Section 193 of the Equality Act provides a specific defence for contravening the act when perusing a charitable interest if it is proportionate means of compensating a disadvantaged group linked to a protected characteristic. The issue for the Court to determine, despite frequent changes in the grounds of appeal, was whether AIHA’s policy to provide social housing for orthodox Jews living in deprivation was reasonable.

Lord Sales gave the leading judgment, with which all justices agreed. The appeal was dismissed. The Supreme Court upheld the judgement of the Divisional Court that their judgement relating to the proportionality of AIHA’s policies was correct. Furthermore, the court held that the Court of Appeal was correct in their judgement that there is no implied requirement of proportionality in the section 193 defence.

This case, above all, highlights the inequalities faced by the Jewish community through antisemitic attacks and prejudice in the private housing market. This article is being written in February 2021, less than one month after the Holocaust Memorial Day. One would hope that after the lessons learned about the atrocities committed by the Nazi Party during the Second World War would prevent such inequalities still existing. Although the case itself did not directly concern antisemitism, it highlighted the societal attitudes held by some toward the Jewish community. This case is a good example of the capability of the Equality Act 2010 being put to good use. The Act was introduced to enshrine 116 separate pieces of legislation into one piece of legislation to protect the rights of individuals and to provide equal opportunities for all. It is positive to see the Act being put to good use in this case to fight historic inequalities that still plague our society today.