“We established that this was about addressing specific housing needs of a religious faith group, who were disadvantaged in the housing market by reason of their adherence to Orthodox Judaism.” Says Elliot Lister, the Litigation Partner who successfully ran the case in the Divisional Court and the Court of Appeal.
The Agudas Israel Housing Association (AIHA), founded to serve the UK’s Orthodox Jewish community, has defeated an appeal to the Supreme Court following a judicial review alleging unlawful discrimination by AIHA over its policy to allocate housing to Orthodox families. AIHA had previously defeated the claim in both the Divisional Court and the Court of Appeal.
The Supreme Court unanimously confirmed the findings of the Divisional Court and Court of Appeal that AIHA’s allocation policy was a proportionate and lawful response to the Orthodox Jewish community’s needs and in any event qualified under a charities exception under the Equality Act 2010.
Elliot Lister commented on the Supreme Court outcome: “Our key success in the Divisional Court and Court of Appeal, whose decisions were wholly endorsed by the Supreme Court, was that we established that this was about addressing specific housing needs of a religious faith group, who were disadvantaged in the housing market by reason of their adherence to Orthodox Judaism. We established clearly that AIHA was concerned with how it facilitated those needing its housing provision to conform with the strict practice of Orthodox Judaism. AIHA were not concerned with how Jewish anyone’s mother was or any other ethnicity or race issue.
I am delighted that the Supreme Court has wholly endorsed these findings that we advocated, in particular that AIHA’s policy is lawful and a proportionate response to the needs of the community it serves and that its charitable objectives were unimpeachable. That is what we set out to achieve.”
The Supreme Court endorsed the findings of the Court of Appeal, that the needs of the Orthodox Jewish community, linked to the relevant protected characteristics that had been put before the Divisional Court, were “many and compelling” and that it was “obvious” that a housing association giving members of the Orthodox Jewish community preference would ameliorate discrimination against the community in the housing sector.
It also confirmed that meeting the needs of the Orthodox Jewish Community in Hackney was a legitimate aim and noted that AIHA had not yet met all those needs as there were still many Orthodox Jews in Hackney whom AIHA cannot accommodate and who still suffer disadvantage.
The allocation of properties to non-members of the Orthodox Jewish community would fundamentally undermine AIHA’s charitable objectives, especially when demand from the Orthodox Jewish community outstrips supply. In the course of his judgment Lord Sales said that “if AIHA changed its allocation policy to bring in people who are not members of the Orthodox Jewish community, that would inevitably dilute the impact it could have on addressing the needs and disadvantages experienced by that community in connection with their faith.”
The Supreme Court ruled that no discrimination on the grounds of race or ethnic origin had occurred. AIHA had shown that its applicants for housing assistance were not assessed on whether they were ethnically Jewish. The qualification was a shared and demonstrable commitment to a particular form of religious observance, namely Orthodox Judaism and to a Haredi way of life. The witness evidence emphasised that being physically part of the Orthodox Jewish community was not a lifestyle choice, but a way of life to the extent that many prefer to stay in unsuitable properties than to move away from their community. That has nothing to do with ethnic or race issues.
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Article Written by: Elliot Lister