Charedi housing association wins landmark Supreme Court case

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Charedi housing association wins landmark Supreme Court case

Agudas Israel, which only provides housing to members of the strictly-Orthodox community, wins legal fight after challenge from non-Jewish single mother of four

Lady Justice (Photo by Tingey Injury Law Firm on Unsplash)
Lady Justice (Photo by Tingey Injury Law Firm on Unsplash)

A Charedi Jewish housing association has won a landmark case at the Supreme Court after its decision not to offer one of its London apartments to a non-Jewish mother was challenged through the courts.

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

Its practice of allocating social housing only to strictly-Orthodox Jews was by challenged by a single non-Jewish mother of four children, one of whom has severe autism, after she was promised the next available apartment, which at the time was AIHA property.

Despite her having been assessed by Hackney as “having the highest possible need”, she came up against AIHA’s practice of offering housing “only to members of the Orthodox Jewish community,” which Hackney Council adheres to.

In October 2017, the council had said it would give her its “next available unit of suitable social housing”, and a few months later she gave birth to twins, meaning that in July 2018 she was moved to the ‘direct offer list’ for a four-bedroom flat, of which AIHA had at least six being advertised at the time.

However, because of AIHA’s practice of only letting its properties to Orthodox Jews, Hackney did not put her forward for consideration. Solicitors said this was “direct discrimination on the ground of religion”, arguing that she had been “treated less favourably those who are not members of the Orthodox Jewish community”.

For the past two years, judges have been considering whether this is lawful, in a case that began in February 2019 at the Divisional Court, which held that the Charedi Jewish-only stipulation was “a proportionate means of overcoming a disadvantage shared by members of the Orthodox Jewish community”.

That ruling was appealed, her lawyers citing EU Directive 2000/43 (the Race Directive), which “enshrines the principle of equal treatment… as meaning that there shall be no direct or indirect discrimination based on racial or ethnic origin”.

The case proceeded to the Royal Courts of Justice in June 2019, where three senior judges were told that 25 percent of Orthodox Jews “live in overcrowded conditions, compared to eight percent of the general Jewish population”.

Agudas lawyers also said most Charedim were “are unwilling to live outside Stamford Hill, where AIHA is located, so tend not to bid elsewhere in the borough”.

They 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, the Court of Appeal said the AIHA allocation policy fell outside the remit of the European Convention on Human Rights and dismissed the appeal, leading AIHA chief executive Ita Cymerman-Symons to brand it “a seal of approval”.

Lawyers acting for the mother pursued the case, appealing to the Supreme Court, amending their argument to suggest that Agudas “contravened the Race Directive by unlawfully discriminating against her on the grounds of race or ethnic origin”.

In a ruling that puts the issue definitively to bed, Court president Lord Reed, sitting in a panel that included Lord Kerr, Lady Arden, Lord Kitchin and Lord Sales, unanimously dismissed the appeal on Friday morning.

Although the Equality Act 2010 makes it unlawful to discriminate on the basis of certain characteristics including race and religion, it also sets out exemptions where actions will not be considered as unlawful.

One such exemption is where positive action “addresses, in a proportionate manner, the needs or disadvantages connected to a protected characteristic”. Another allows charities to restrict benefits – such as housing – to those with a protected characteristic if that is “a proportionate means of achieving a legitimate aim”.

The judges agreed that the AIHA policy was a proportionate means of achieving a legitimate aim and dismissed arguments from the appellant that the Race Directive, which outlaws discrimination based on race or ethnic origin, applied in this case.

They said it did not “for the simple reason that the allocation policy differentiates on the basis of religious observance and not race or ethnic origin”.

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