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Asserson Wins for Jewish Housing Association in Defeating Discrimination Challenge

The Agudas Israel Housing Association (AIHA), founded to serve the UK’s Orthodox Jewish community, has defeated an application for Judicial Review by a mother and her young son over its policy to allocate housing to Orthodox families.

Critically, the court has recognised that Orthodox Jewish community members’ way of life requires them to live close by each other as a community – to the extent many decide to live in unsuitable properties rather than to move away from their community. It has also recognised widespread and increasing overt anti-Semitism and prejudice in society, including in the private rental sector, against Orthodox Jews on account of their appearance, language, and religion.

The claimants, who are not Jewish, wanted to be allocated a home in AIHA’s new Aviv development in Stamford Hill, but were not given the chance to bid. The claim[1] against Hackney London Borough Council and AIHA, challenged AIHA’s policy of allocating its social housing properties on the basis that they precluded any persons who are not members of the Orthodox Jewish community from becoming tenants.

Following a detailed review of the social housing market, and the specific characteristics of Hackney’s Orthodox Jewish Community, including anti-Semitism and religious needs, the Divisional Court ruled that AIHA’s policy was lawful and found against the application for Judicial Review, concluding that AIHA served a specific need and tried to do so with access to only 1% of Hackney’s social housing stock.

The judgement handed down by Lord Justice Lindblom and Sir Kenneth Parker, added:

AIHA’s arrangements are justified as proportionate … the disadvantages and needs of the Orthodox Jewish community are many and compelling. They are also in many instances very closely related to the matter of housing accommodation. We recognise the needs of other applicants for social housing, but in the particular market conditions to which we have referred, AIHA’s arrangements are proportionate in addressing the needs and disadvantages of the Orthodox Jewish Community, notwithstanding the fact that in those market conditions, a non-member cannot realistically expect AIHA to allocate to him or her any property that becomes available.”

Elliot Lister, partner at law firm Asserson, representing AIHA, said:

The Divisional Court has today endorsed the critical work of a charity established to fight anti-Semitism and discrimination in the face of allegations that it itself discriminates. The Jewish community and even more so the obviously Orthodox Jewish community, faces an ongoing battle against anti-Semitism, recognised by their Lordships as widespread and increasing and overt.

The Orthodox Jewish community’s members’ 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 from their community. I am grateful that one 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 way of life. More importantly the court has confirmed that the disadvantages can be legitimately addressed by a charity founded for that purpose, without fear of censure for discrimination.

For an organisation that was established to counter discrimination and has that as its mission, this is a particularly important judgment.

Mrs. Ita Cymerman-Symons, MBE, chief executive officer of AIHA, which has previously stated that over 1,000 Orthodox families are on AIHA’s waiting list for appropriate accommodation, said:

“This ruling will help address the imbalance, disadvantages, and prejudices faced by Orthodox Jewish families in trying to find suitable housing.

I am gratified that the Divisional Court has recognised the ongoing and increasingly critical work of AIHA both in addressing today’s rising anti-Semitism and in our continuing contribution to the members of the Orthodox Jewish community and to the development and strengthening of that community. I firmly believe that our work contributes to alleviating, in our small way, a national housing crisis, freeing up other non-AIHA social housing for others. We do not take properties from others, but we lessen the queue for other properties.

Counsel for AIHA was Christopher Baker with Rea Murray at 4-5 Grays Inn Square.

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As a result of this judgement the Divisional Court holds:

  1. AIHA’s allocation arrangements are justified and proportionate in addressing the needs and disadvantages of the Orthodox Jewish Community, even in a strained housing market, notwithstanding the fact that in those market conditions, a non-member cannot realistically expect AIHA to allocate them any property that becomes available.
  2. The evidence demonstrates a particular need in the Orthodox Jewish community for property, likely to be in very short supply, to accommodate substantially larger families, and so significantly reduce the particular and intensified risk to such families of eviction from overcrowded accommodation.

The Divisional Court also recognises:

  1. The widespread and increasing overt anti-Semitism in our society.
  2. Prejudice, including in the private rental sector, against strictly Orthodox Jews on account of their appearance, language and religion.
  • Disadvantages and needs of the Orthodox Jewish community are many and compelling.
  1. The centrality of community and proximity to one another in Orthodox Jewish life.
  2. Social housing is under severe pressure in Hackney, and around the country, with increasing demand and dramatic cuts in central government funding and an acute imbalance between supply and demand for social housing in Hackney.
  3. It is “self-evident” that if AIHA were to allocate any of its properties to non-members of the community it prioritises, it would seriously dilute the number of properties available to Orthodox Jews, and would fundamentally undermine its charitable objective of giving meaningful “primary” provision to Orthodox Jews.

[1] The claim also challenged the lawfulness of Hackney’s arrangements for the nomination of applicants to these properties. The claimant’s lawyers argued that AIHA’s (and hence Hackney’s) arrangements discriminated against them because they are not members of the Orthodox Jewish community, and are unlawful, principally under the Equality Act 2010. AIHA’s defence relied on s158 of the Act which provides for positive action to address disadvantage and different needs and s193 of the Act, the charities exception.

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Click on each publication below for some notable media coverage:

Hamodia

Jewish News

London Live: Video

Scottish Housing News

Scottish Legal News

The Guardian

The Jewish Chronicle

The Law Society Gazette

The Times