Z & Ors, R (On the Application Of) v Hackney London Borough Council & Anor

Positive action under section 158 of the Equality Act 2010 may lawfully give a protected group primary access to scarce social housing where the group suffers substantial connected disadvantages or has different needs, and the arrangements are proportionate.

Proportionality requires consideration of the importance of the objective, rational connection, necessity and the overall balance between the benefit and the rights infringement. The assessment is fact-sensitive and must take account of the provider’s market share, the scarcity of the resource and the extent of the relevant disadvantage or need.

A local authority does not unlawfully discriminate merely by nominating applicants to a provider whose otherwise discriminatory allocation arrangements are lawful under the Act.

The claimants, a mother and her young son, challenged housing allocation arrangements operated by Agudas Israel Housing Association and Hackney London Borough Council. In practice, the arrangements gave primary access to the association’s limited social housing stock to members of the Orthodox Jewish community.

The claimants alleged unlawful direct and indirect discrimination under the Equality Act 2010, breach of Hackney’s own policy, failure to comply with the duty concerning children’s welfare under the Children Act 2004, and unlawfulness in the nomination arrangements. The central issues were whether the association could rely on the positive-action and charitable exceptions, and whether Hackney’s nominations were consequently unlawful.

1. AIHA’s arrangements. The court held that allocating social housing primarily to Orthodox Jews involved direct discrimination because of religion. The arrangements were nevertheless permitted by section 158 of the Equality Act 2010. Orthodox Jews in Hackney suffered substantial disadvantages connected with religion, including poverty, deprivation, anti-Semitic abuse and crime. They also had different housing needs, including proximity to community facilities, security and accommodation suitable for larger families.
2. The relevant disadvantages and needs were not excluded merely because they were connected with religious practice. Features such as kosher kitchens carried limited weight on their own, but could be considered in the overall proportionality assessment. The court rejected the characterisation of the policy as an absolute or blanket exclusion. AIHA’s charitable instrument gave Orthodox Jews a primary position, while the very limited supply of properties and substantial demand explained the practical outcome.
3. The court adopted the four-stage proportionality approach described in Akerman-Livingstone v Aster Communities Ltd [2015] UKSC 15. The objective had sufficient importance, the arrangements were rationally connected to it, no less intrusive means would realistically achieve it, and the benefit to the Orthodox Jewish community outweighed the disadvantage to other applicants. The conclusion was specific to AIHA’s small share of the relevant housing market and the acute scarcity of social housing.
4. The arrangements also satisfied section 193. “In pursuance of” a charitable instrument meant authorised by, in line with or in accordance with it. Section 194 did not prevent reliance on section 193 merely because the practical beneficiaries were predominantly white; the relevant characteristic was the religion identified by the charitable instrument, not colour.
5. Hackney’s claim failed. Since AIHA’s arrangements were lawful, Hackney had no legal power to require AIHA to abandon them. Its nominations therefore did not constitute unlawful discrimination. The challenges based on Hackney’s own policy and section 11 of the Children Act 2004 also failed, because they depended on the false premise that Hackney could lawfully procure a change to AIHA’s lawful arrangements.
6. The questions whether AIHA exercised a public function for the purposes of section 29(6) or was amenable to judicial review were academic and were not decided. The claim for judicial review was dismissed.