Charedi housing association wins legal battle in Court of Appeal

A Jewish housing association in north London celebrated a major Court of Appeal victory on Thursday after a non-Jewish family sought to challenge its practice of allocating social housing only to Jews.

The case concerned Agudas Israel Housing Association (AIHA), a charity based in Hackney which provides housing to members of the Orthodox Jewish community. It owns 470 properties across the borough, about one percent of all social housing.

The appellant was a single non-Jewish mother of four children, one of whom has severe autism. She challenged AIHA’s practice of offering housing “only to members of the Orthodox Jewish community,” which Hackney Council adheres to.

She was assessed by Hackney as “having the highest possible need for re-housing” and in October 2017 the council agreed to make her a “direct offer of its next available unit of suitable social housing”. A few months later she gave birth to twins.

In July 2018 she was moved to the ‘direct offer list’ for a four-bedroom property. At least six four-bedroom AIHA properties then became available and were advertised by Hackney, but because of AIHA’s practice of only letting its properties to Orthodox Jews, Hackney did not put her forward for consideration.

All parties accepted that AIHA’s arrangements amounted to “direct discrimination on the ground of religion, because they treat less favourably those who are not members of the Orthodox Jewish community”.

Judges were asked to consider whether this was lawful. In February, the Divisional Court held that it was, because it was “a proportionate means of overcoming a disadvantage shared by members of the Orthodox Jewish community”.

However that judgement was appealed, in part because EU Directive 2000/43 (the Race Directive) “enshrines the principle of equal treatment… as meaning that there shall be no direct or indirect discrimination based on racial or ethnic origin”.

The latest hearing was held over two days at the Royal Courts of Justice earlier this month. Three senior judges were told that 25 percent of Orthodox Jews “live in overcrowded conditions, compared to eight percent of the general Jewish population,” and that “most of the Charedi community are unwilling to live outside Stamford Hill, where AIHA is located, so tend not to bid elsewhere in the borough”.

Lawyers also argued that the Orthodox community “has a particular need for larger properties because of their large family sizes” and that Orthodox Jews “represent an increasing proportion of housing applicants as the number of bedrooms increases”.

In its ruling, published on Thursday, the Court of Appeal deemed AIHA’s allocation policy to fall outside the remit of the European Convention on Human Rights, despite the mother’s lawyers arguing that it applied.

It found that the Divisional Court was “entitled to find that AIHA’s allocation policy was a proportionate means of achieving a legitimate aim” and dismissed the appeal.

AIHA chief executive Ita Cymerman-Symons said the ruling was “a seal of approval” that would “help address the imbalance, disadvantages and prejudices faced by Orthodox Jewish families in trying to find suitable housing”.

Elliot Lister, a partner at law firm Asserson, representing AIHA, said the Orthodox way of life “requires them to live close by each other as a community, to the extent that many prefer to stay in unsuitable properties than to move away”.

He added: “I am grateful that yet another of the highest courts in the land has recognised the features of the Orthodox Jewish way of life and the disadvantages that are engendered by that.”