UK: Jewish housing association defeats discrimination challenge again after appeal

Agudas Israel Housing Association (AIHA), which provides accommodation exclusively for Orthodox families, defeated an application for Judicial Review by a mother and her young son over its allocation policy in February.

The English High Court dismissed a claim, which had been brought by a non-Jewish family in Stamford Hill, protesting that AIHA policies precluded people who were not members of the Orthodox Jewish community from becoming tenants.

Now the Association has defeated an appeal against the Judicial Review.

The Court of Appeal confirmed the Divisional Court’s findings that AIHA’s allocation policy was a proportionate response to the community’s needs and in any event qualified under a charities exception under the Equality Act 2010.

In the leading judgment, Lord Justice Lewison (with whom the rest of the court agreed) said 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. He 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. In the course of his judgment he noted that anti-Semitism was at an unacceptable level.

The claimants, who are not Jewish, had 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, 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. In fact, prior to the appeal, the claimants had been rehoused by Hackney, and the appeal was dealt with on the basis of its wider public importance.

Following a detailed review of the judgment of the Divisional Court, the Court of Appeal endorsed its findings and rejected the appeal on all grounds and reconfirmed the lawfulness of AIHA’s policy.

Ita Cymerman-Symons MBE, chief executive officer of AIHA, said: “I said that the ruling of the Divisional Court will help address the imbalance, disadvantages and prejudices faced by Orthodox Jewish families in trying to find suitable housing, so I am delighted today that the Court of Appeal has endorsed this original judgement.

“Furthermore, this seal of approval will allow AIHA’s ongoing and increasingly critical work to continue – both in addressing discrimination against Orthodox Jews and wider anti-Semitism, and in our continuing contribution to the members of the Orthodox Jewish community and to the development and strengthening of that community.

“Importantly, the court noted that our work was not yet done. They were right. There is much for us to do and I very much hope that we will now be allowed to do our work without the distraction and expense of legal proceedings. Our work contributes to alleviating in our small way, a national housing crisis, freeing up other non-AIHA social housing for others. But as the court recognises, what we can do is just a drop in a much bigger ocean and we unfortunately cannot even offer a complete solution for the Orthodox Jewish community we were established to serve.

“I am thrilled that our approach and mission have survived this challenge to our legitimacy and I am very pleased that the original applicants have been rehoused by Hackney in suitable accommodation. We do not take properties from others, but we lessen the queue for other properties. It is so important that we can continue with our work with such distinguished endorsement for our approach.”

Elliot Lister, partner at law firm Asserson, representing AIHA, said: “The Court of Appeal has today endorsed the Divisional Court’s findings that the approach and mission of a charity established to fight anti-Semitism and discrimination is entirely lawful in the face of allegations that it itself discriminates unlawfully. The Jewish community and even more so the obviously Orthodox Jewish community, faces an ongoing battle against anti-Semitism, recognised by the Court of Appeal to be at unacceptable levels.

“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 yet another 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 again confirmed that the disadvantages can be legitimately addressed by a charity founded for that purpose, without fear of censure for discrimination. In so doing it made important rulings in respect of the Equality Act and in particular the proper way to understand the rules for charities whose mission is to assist particular groups and address their disadvantages.

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