Social Housing Speed Read – The Equality Act 2010 and allocation policies

Facts

The Agudas Israel Housing Association Limited (“AIHA”) is a charitable housing association which makes properties available to Hackney London Borough Council (the “Council”). The properties provided by AIHA make up approximately 1% of the stock of social housing which is available to the Council.

AIHA’s charitable objective is to provide “housing, accommodation and assistance” primarily for the benefit of the Orthodox Jewish Community. In practice, all of AIHA’s properties are allocated to members of the Orthodox Jewish Community due to the demand for social housing within the community.

The Appellant is a single mother with four children, two of which were diagnosed with autism spectrum disorder. In August 2017, the Court ordered the Council to re-house the Appellant and her family after finding that her property was unsuitable and unsafe. The family were moved into temporary accommodation and were assessed by the Council as having priority need to be re-housed; the Appellant was informed that she would be offered the next available property.

The Council could not compel AIHA to accept tenants that did not fall within the remit of its charitable objective and as such, the Council only nominated members of the Orthodox Jewish Community to AIHA. While the Appellant was waiting to be re-housed, a number of AIHA’s properties became available; however, these were not offered to the Appellant because she was not a member of the Orthodox Jewish Community.

High Court, Court of Appeal and Supreme Court

The Appellant brought proceedings against AIHA and the Council in the High Court. In general terms, the Appellant challenged the lawfulness of AIHA’s policy and the Council’s arrangements for nominating prospective tenants to AIHA and alleged that she had been unlawfully discriminated against on the grounds of her religion and race. The Appellant also alleged (amongst other things) that AIHA could not rely on Section 158 of the Equality Act 2010. Section 158 allows public authorities to take positive action which address the disadvantages faced by those who share protected characteristics.

The High Court dismissed the claim and held that AIHA was justified in taking positive action under Section 158 due to the substantial disadvantages faced by members of the Orthodox Jewish Community and the fact that the community had different needs to those who were not part of the religion. The Court found that, within the Orthodox Jewish Community, there were high levels of poverty and low levels of home ownership. In addition, members of the Orthodox Jewish Community had a need to live within close proximity of one another in order to reduce anti-Semitic abuse and crime.

The appeal was dismissed by the Court of Appeal. The Appellant subsequently appealed to the Supreme Court who again found in favour of AIHA and dismissed the appeal. The Supreme Court upheld the findings of the High Court and Court of Appeal and held that AIHA’s allocation policy was proportionate and lawful.

This is an interesting case which confirms that housing associations can lawfully reserve housing stock for groups of people who share a protected characteristic and suffer a disadvantage connected to that characteristic. Please note however, that decisions such as these are largely fact specific.

If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team.