Z & Aanor, R (On the Application Of) v London Borough of Hackney & Anor [2019] EWCA Civ 1099 (27 June 2019)

Z & Aanor, R (On the Application Of) v London Borough of Hackney & Anor [2019] EWCA Civ 1099 (27 June 2019)

AIHA's housing allocation policy, which gives preference to Orthodox Jews, is lawful under section 193(1) and section 193(2)(b) of the Equality Act 2010 because it is made in pursuance of a charitable instrument and for the purpose of preventing or compensating for disadvantage linked to the protected characteristic of religion. Section 193(2)(b) does not require a proportionality assessment. Even if proportionality were required, the Divisional Court was entitled to find the policy proportionate given the small proportion of housing affected and the compelling disadvantages faced by the Orthodox Jewish community.

Citation
[2019] EWCA Civ 1099
Parties
Appellants: Z and Another; First Respondent: London Borough of Hackney; Second Respondent: Agudas Israel Housing Association Limited
Jurisdiction
England and Wales
Judgment Date
27 June 2019
Procedural Posture
Judicial Review Appeal / Court of Appeal (civil Division) Appeal From Divisional Court
Outcome
Appeal dismissed
Legal Topics
Direct Discrimination, Positive Action, Charitable Exception, Proportionality, Protected Characteristics, Housing Allocation, Judicial Review
Equality Law Charity Law Housing Law Human Rights Direct Discrimination Positive Action Charitable Exception Proportionality +3 more

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Parties

Z and Another

Appellants

London Borough of Hackney

First Respondent

Agudas Israel Housing Association Limited

Second Respondent

Procedural Posture

Judicial Review Appeal / Court of Appeal (civil Division) Appeal From Divisional Court

Legal Issues

  1. 1 Whether AIHA's housing allocation policy, which gives preference to Orthodox Jews, constitutes unlawful direct discrimination under the Equality Act 2010.
  2. 2 Whether such discrimination is justified under section 158 (positive action) or section 193 (charitable exception) of the Equality Act 2010.
  3. 3 Whether a proportionality assessment is required under section 193(2)(b) of the Equality Act 2010.

Ratio Decidendi

AIHA's housing allocation policy, which gives preference to Orthodox Jews, is lawful under section 193(1) and section 193(2)(b) of the Equality Act 2010 because it is made in pursuance of a charitable instrument and for the purpose of preventing or compensating for disadvantage linked to the protected characteristic of religion. Section 193(2)(b) does not require a proportionality assessment. Even if proportionality were required, the Divisional Court was entitled to find the policy proportionate given the small proportion of housing affected and the compelling disadvantages faced by the Orthodox Jewish community.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed. AIHA's allocation policy is lawful under the Equality Act 2010.