Introduction

In the case of Z & Ors, R (On the Application Of) v. Hackney London Borough Council & Anor ([2019] EWHC 139 (Admin)), the England and Wales High Court addressed significant issues surrounding the allocation of social housing. The claimants, a mother and her three-year-old son, challenged the allocation practices of the Agudas Israel Housing Association (AIHA) and Hackney London Borough Council ("Hackney"). The heart of the dispute centered on AIHA's allocation arrangements, which effectively prioritize members of the Orthodox Jewish community, thereby excluding non-members from tenancy opportunities. The claimants argued that such practices constitute unlawful discrimination under the Equality Act 2010.

Summary of the Judgment

The High Court examined whether AIHA's allocation scheme, which favors members of the Orthodox Jewish community, was lawful under the Equality Act 2010. The court concluded that AIHA's practices constituted lawful "positive action" under Section 158 of the Act. The judgment recognized the unique disadvantages and needs of the Orthodox Jewish community, including high levels of poverty, discrimination, and specific housing requirements. The court found that AIHA's allocation scheme was proportionate and aimed at addressing these disadvantages without unlawfully discriminating against others. Consequently, the claim against both AIHA and Hackney was dismissed.

Analysis

Precedents Cited

The judgment extensively referenced prior cases to contextualize and support its findings:

• R. (E) v Governing Body of JFS [2010] 2 AC 728 ("JFS"): This Supreme Court case established that policies favoring one racial group over others can constitute unlawful direct discrimination. However, it also clarified the nuances of discrimination law, particularly distinguishing between direct and justified forms.
• Briheche v Ministre de L'Intérieur & Others (Case C-319/03) ECR 2004 1-08807 [2005] 1 CMLR 4 ("Briheche"): This European Court of Justice case dealt with the proportionality of discriminatory measures, emphasizing that any disadvantages caused must not be disproportionate to the aims pursued.
• Reaffirmation of Positive Action Principles: The court referred to the concept of "positive action" as defined under the Equality Act 2010, distinguishing it from "positive discrimination" and highlighting its legitimacy when addressing specific disadvantages.

Legal Reasoning

The court's legal reasoning hinged on interpreting Section 158 of the Equality Act 2010, which permits "positive action" measures aimed at alleviating disadvantages faced by specific groups. The key points in the reasoning included:

• Protected Characteristics: The Orthodox Jewish community's religious affiliation qualifies as a protected characteristic under the Act, encompassing both religion and race.
• Disadvantage and Need: The court acknowledged substantial evidence of disadvantages faced by the Orthodox Jewish community, including heightened vulnerability to anti-Semitism, poverty, and specific housing needs.
• Proportionality: AIHA's allocation measures were deemed proportionate as they addressed significant disadvantages without imposing undue or unwarranted burdens on non-members. The scarcity of suitable social housing further justified the prioritization.
• Charitable Objectives: AIHA's actions were in line with its charitable objectives to benefit the Orthodox Jewish community, and thus, its allocation scheme was sanctioned under the Act.

Impact

This judgment sets a critical precedent for social housing allocations and the application of the Equality Act 2010. It underscores the legitimacy of positive action measures when they are proportionate and aimed at rectifying genuine disadvantages. Future cases involving housing allocations, especially those intersecting with protected characteristics, will likely reference this judgment to assess the balance between addressing community-specific needs and ensuring non-discriminatory practices.

Complex Concepts Simplified

Positive Action vs. Positive Discrimination

Positive Action refers to measures that aim to improve opportunities for disadvantaged groups without disadvantaging others. It is lawful under the Equality Act 2010 when proportionate and aimed at addressing specific disadvantages.

Positive Discrimination, on the other hand, involves treating individuals more favorably based solely on a protected characteristic, which is generally unlawful.

Protected Characteristics

Under the Equality Act 2010, protected characteristics include race, religion, gender, disability, and others. Actions based on these characteristics must be carefully scrutinized to ensure they do not result in unlawful discrimination.

Proportionality in Discrimination Law

Proportionality assesses whether the means used to achieve a legitimate aim are appropriate and not excessive. In discrimination cases, it ensures that any differential treatment is justified by the objectives sought and does not impose undue burdens on others.

Public Function and Judicial Review

A public function refers to activities carried out by public authorities. Judicial review allows courts to assess the legality of these activities. However, not all actions by entities like housing associations fall under this, depending on their functions and statutory obligations.

Conclusion

The High Court's judgment in Z & Ors v. Hackney London Borough Council & Anor serves as a pivotal reference point in the realm of social housing and discrimination law. By upholding AIHA's allocation scheme as lawful under the Equality Act 2010, the court affirmed the permissible scope of positive action measures aimed at addressing the unique disadvantages faced by the Orthodox Jewish community. This decision balances the need to support disadvantaged groups with the imperative to prevent unlawful discrimination, providing a nuanced framework for future cases involving similar dynamics.