QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Sir Kenneth Parker
| R. (on the application of Z and others)
- and –
|(1) Hackney London Borough Council
(2) Agudas Israel Housing Association
for the Claimants
Mr Matt Hutchings QC (instructed by Hackney Legal Services) for the First Defendant
Mr Christopher Baker and Ms Rea Murray (instructed by Asserson Law Officer)
for the Second Defendant
Hearing dates: 20, 21 and 22 November 2018
Crown Copyright ©
Lord Justice Lindblom and Sir Kenneth Parker
Housing Act obligations on Hackney
"For the purposes of this Part a local housing authority allocate housing accommodation when they –
(c) nominate a person to be an assured tenant of housing accommodation held by a private registered provider of social housing or a registered social landlord.
Section 166A(1) states:
"Every local housing authority in England must have a scheme (their "allocation scheme") for determining priorities, and as to the procedure to be followed, in allocating housing accommodation."
Section 166A(14) provides:
"A local housing authority in England shall not allocate housing accommodation except in accordance with their allocation scheme."
Hackney's allocation scheme
"… if you have been accepted onto the Council's Housing Register you will be asked to "bid" on council properties and those nominated by our Registered Providers (RPs). Because the demand for social housing in Hackney far exceeds that which we can supply, it is necessary that we prioritise each application on the Housing Register to help ensure that the housing stock we do have is allocated in the most appropriate way."
Paragraph 6.2 states:
"This means that the household with the highest priority bidding for a property is given first refusal on whether they take up this offer, and if not the opportunity passes down to the next highest priority household."
"… these points are not accumulative, if you qualify in more than one area … the points you are awarded are not added together. Instead, whichever of the areas that generates the highest priority is used to define the band you are placed in."
"a) [Make] an additional points award so that your application is moved into a higher band as appropriate,
b) [Adjust] priority date [sic] of you [sic] application within the band you have been placed, or
c) A combination of both (A) and (B)."
"Sometimes, a household's need to move is so urgent that the process of bidding for a suitable property may take too long to avert a crisis occurring. Alternatively a household living in temporary accommodation who coming towards the end of their lease, or who are not taking sufficient action to find suitable permanent accommodation [sic]. There will also be occasions when it is of mutual benefit to both the Council and a household seeking to move to circumvent the Choice Based Lettings process. In these types of instances the Council reserves the right to make a direct offer of accommodation to a household currently on the Housing Register. Please be aware you will one [sic] receive one direct offer."
"Anyone affected by domestic violence or racial harassment and who feels unable to continue living in their home as a result of this is entitled to apply as homeless to the Council's Homelessness Service or to any other local authority."
"The Council has nomination rights to some housing association properties. These properties are let in exactly the same manner as Hackney's own housing stock. Housing association properties may be advertised or offered directly to high priority applicants. The same banding system and method of prioritising applies to housing association homes and no separate list is retained for nominations to housing associations."
Paragraph 9.9 states:
"Housing associations are independent of the Council and have the final decision as to whether or not to accept a nomination from Hackney Council. If an applicant is unhappy with the viewing process operated by a housing association, or feels their nomination has been unfairly rejected, then they are advised in the first instance to use the complaints procedure of the relevant housing association."
"When bidding closes all bids are sorted into priority order with those in the highest band and with the oldest band date placed at the top of the list. Eligibility checks are then carried out by the lettings team, including checks for rent arrears, local connection and immigration status.
After the checks have been completed, a list of the top five eligible bidders will be sent to the Council neighbourhood offices or Housing Associations. 'Shortlisted' applicants will usually be contacted within a week by phone or letter and invited to view the property…"
The nominations agreement
"Generally, the Council will submit one nomination per vacancy. If this nomination is unsuccessful then successive nominations will be made on an individual basis. …"
"Occasionally, there may be instances where the Council will find it difficult to nominate to housing schemes catering for groups not specifically classified [in] the Council's ethnic monitoring system. If this is the case there are two ways in which this problem will be addressed…. For associations/co-ops catering solely for a specific ethnic group outside of the Council ethnic monitoring schema [sic], problems of this nature should be resolved through the procedures outlined in the review section at 11.0 below." (original emphasis)
"9.1 As 'Partners' recommends, associations/co-ops should generally accept the local authority's prioritisation of need. There may however be instances where Council nominees are deemed to be inappropriate according to the association/co-op's own policy criteria (see paragraph 6.9 for procedural detail). Some of the policy areas where there are likely to be such differences are: bedspace and floor level standards, medical assessments, policies on children of the same/opposite sex sharing, and policies for families with children under five to have access to a garden.
9.2 When an association/co-op is concerned that a policy difference is regularly becoming a point of contention the following procedures should be adopted in an attempt to resolve the policy difference and respect each party's autonomy."
"Occasionally, a third approach may be required for instances where an insurmountable policy difference between the Council and an association, such as over the assessment of a household's bed size requirement, leads to the association wishing to reject a nominee. When this occurs efforts should be made by officers of the association and the Council to resolve this, possibly through substitution of another vacancy suitable under the association's criteria. Where this is not possible the Council may make alternative nominations, and the association should record that one nomination has been processed."
"9.6 It should be noted that the role of this Agreement is limited to providing an appropriate procedural framework for attempting to resolve policy differences. In no sense can it give a definite answer on which organisation's policy will prevail in the final analysis.
9.7 If the point at issue is the Council's ability to nominate suitable households to a scheme for a particular ethnic group, then satisfying ethnic origin criteria stipulated by the association will be non-negotiable, and the matter will need to be dealt with according to 8.5.3 above." (emphasis added)
"The Borough and associations/co-ops wish to promote equal access to housing and are committed to a policy of equality of opportunity with regard to race, gender, marital status, ethnic or national origin, religion, creed, disability and sexuality."
The housing market
"A2 The Association is formed for the benefit of the community. Its object shall be to carry on for the benefit of the community (and primarily for the benefit of the Orthodox Jewish Community):
A2.1 the business of providing housing, accommodation, and assistance to help house people and associated facilities and amenities for poor people or for the relief of the aged, disabled, handicapped (whether physically or mentally) or chronically sick people.
A2.2 any other charitable object that can be carried out by an Industrial and Provident Society registered as a social landlord with the Corporation."
AIHA's allocation system
"Agudas Israel HA operates a direct waiting list. Separate waiting lists are maintained for transfers, under occupiers and decants."
"The Lettings Officer will allocate an empty property in accordance with the annual lettings plan. … Offers are made at the discretion of a selection panel. …"
- In most instances Local Authorities will have 75% nomination rights to all new developments. …
- All relets are subject to Local Authority nomination agreements, which are generally:
- Family Sized true voids 75% to the local authority
- Non-Family Sized true voids 50% to the local authority."
The Orthodox Jewish Community in Hackney
Anti-Semitism and Crime
"We were the only Orthodox Jewish family in the vicinity. We felt isolated in terms of location and community. Neighbours complained about our children and told us they were not allowed to play outside at the front of the building, even though they allowed their children to play there.
One night two men came to our door and threw stones at our front door and windows. I was home alone with the children at the time and it was terrifying."
Christine Holman and Naomi Holman found in their 2002 report that "11% of households had been victims of vandalism" and one third of these "were perceived to have a racial motive". Members of 43% of households also reported receiving verbal abuse – most of which involved racist language. In a survey the authors carried out within the Haredi community, 27% of households had had their car "tampered with or damaged by vandals or people attempting to steal". This was far above the contemporaneous 2.4% average for England and Wales and 5.7% for inner city areas, as reported in the British Crime Survey 2001.
"I would say that it is impossible for Orthodox Jews to properly maintain their practice and belief without being part of a community and without having the facility and infrastructure nearby. The Orthodox Jewish community is characterised by its way of life, which manifests itself in its reliance on proximity to community infrastructure and facilities. In my view, the more religious you are on the spectrum, the more reliant you are on community. The greater the personal Jewish conviction, the tighter community you need to live in."
Micah Gold, a senior consultant and facilitator in the field of public service modernisation, referred in evidence to a report of December 2017 by Dr David Graham of the Institute of Jewish Policy Research, in which Dr Graham considered the social housing needs of the Jewish population in London. Micah Gold was asked by the Industrial Dwellings Society to lead a qualitative assessment of Dr Graham's report, and for that purpose met with a focus group representing different parts of the Jewish Community. He stated:
"I met with ten women for my focus group. The responses that I collected attest not only to the centrality of community to haredi or Orthodox Jewish religious, cultural and social life, but also to the commitment and need of members of the Orthodox Jewish community to remain geographically proximate to that community, even if that means foregoing improved living conditions, bigger houses, or proper housing at all. It is plain from the responses that the attachment to specific locations is not a question of convenience but effectively reflective of a way of life and community."
Rabbi Abraham Pinter, the Principal of the Yesodey Hatorah educational institutions in Stamford Hill and a trustee of the Union of Orthodox Hebrew Congregations, stated:
"Community is essential to the spiritual life that Orthodox Jews strive to live. I have already mentioned how the Orthodox Jewish community prays together and how a minyan is needed. We celebrate and mourn as a community. When we confess, we do so collectively, irrespective of whether we as individuals have transgressed in any particular way. …
In Orthodox Judaism, we come before God as a community. We develop our moral character as individuals through our community, by our commitment to the common good in community. We do that work locally ourselves and we do it together. Being part of a community, both physically and spiritually, is a prerequisite of fulfilling the life of an Orthodox Jew."
"If this is meant to suggest that the facilities are necessary to enable Orthodox Jews to observe the Sabbath (or other religious laws) then that is simply wrong. At best the facilities she describes make Sabbath observance, and the observance of other laws, normative." (original emphasis)
For example, with reference to kosher kitchens, where there is a prohibition on mixing meat and dairy products, he states that having two sinks "makes life easier" but that it is possible to strictly conform with the dietary laws, for example, by "having two washing up bowls (typically a pink or red one for meat and a blue one for milk)".
"The Defendant Council is forthwith to re-house the family in accommodation which provides a safe and risk-free environment for the claimant's two young children. For the avoidance of any doubt, their current accommodation is not considered to provide such an environment."
Following this, Hackney moved the family to temporary accommodation and agreed in the consent order of 2 October 2017 that it would make Z a direct offer of the next unit of suitable three-bedroom accommodation that became available.
Relevant law (2010 Act claim)
"(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."
"(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if –
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim."
"(1) A person (a "service-provider") concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.
(6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation."
Section 31(4) states:
"A public function is a function that is a function of a public nature for the purposes of the Human Rights Act 1998."
"(1) A person does not contravene this Act only by restricting the provision of benefits to persons who share a protected characteristic if –
(a) the person acts in pursuance of a charitable instrument, and
(b) the provision of the benefits is within subsection (2).
(2) The provision of benefits is within this subsection if it is –
(a) a proportionate means of achieving a legitimate aim, or
(b) for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic.
(4) If a charitable instrument enables the provision of benefits to a person of a class defined by reference to colour, it has effect for all purposes as if it enabled the provision of such benefits –
(a) to persons of the class which results if the reference to colour is ignored, or
(b) if the original class is defined by reference only to colour, to persons generally."
"(1) This section applies for the purposes of section 193.
(2) That section does not apply to race, so far as relating to colour.
(3) "Charity" –
(a) in relation to England and Wales, has the meaning given by section 1(1) of the Charities Act 2011; …
(4) "Charitable instrument" means an instrument establishing or governing a charity (including an instrument made or having effect before the commencement of this section)."
"(1) This section applies if a person (P) reasonably thinks that –
(a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic,
(b) persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, or
(c) participation in an activity by persons who share a protected characteristic is disproportionately low.
(2) This Act does not prohibit P from taking any action which is a proportionate means of achieving the aim of –
(a) enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage,
(b) meeting those needs, or
(c) enabling or encouraging persons who share the protected characteristic to participate in that activity."
The explanatory notes to the Equality Act 2010 provide the following general guidance in respect of the effect of section 158:
"511. This section provides that the Act does not prohibit the use of positive action measures to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation in relation to particular activities, and meet their particular needs. It will, for example, allow measures to be targeted to particular groups, including training to enable them to gain employment, or health services to address their needs. Any such measures must be a proportionate way of achieving the relevant aim.
512. The extent to which it is proportionate to take positive action measures which may result in people not having the relevant characteristic being treated less favourably will depend, among other things, on the seriousness of the relevant disadvantage, the extremity of need or under-representation and the availability of other means of countering them. This provision will need to be interpreted in accordance with European law which limits the extent to which the kind of action it permits will be allowed."
The issues in the claim
A. The challenge against AIHA's arrangements under the 2010 Act
"In order to take positive action, a service provider must reasonably think that one of the above conditions applies that is, disadvantage, different need or disproportionately low participation. This means that some indication or evidence will be required to show that one of these statutory conditions applies. It does not, however, have to be sophisticated statistical data or research. It may simply involve looking at the profiles of services users and/or making inquiries of other services providers in the area. It could involve looking at differential rates of take-up of benefits or services or access to memberships or differential rates of exclusions or rejections. A decision to take positive action could be based on qualitative evidence, such as consultations with users and non-users, surveys showing poor experiences of a service related to a protected characteristic, focus groups, complaints, inspection reports, discrimination claims, or evidence of similar problems gathered by other organisations."
"Disadvantage is not defined in the [Equality] Act. It may, for example, include exclusion, rejection, lack of opportunity, lack of choice, or barriers to accessing services…. Disadvantage may be obvious from statistical sources, such as national data, but in other cases may be shown by qualitative evidence or from the results of monitoring that has been carried out."
"The [Equality] Act enables action to be taken to enable or encourage people who share a protected characteristic and who suffer a disadvantage connected to that characteristic to overcome or minimise the disadvantage. The Act does not limit the action that could be taken, provided it satisfies the statutory conditions and is a proportionate means of achieving the aim…. Such action could include identifying through consultation, surveys or a review of data possible causes of the disadvantage and then:
- Providing services specifically aimed at a disadvantaged group;
- … ."
"A group of people who share a particular protected characteristic have 'different needs' if, due to past or present discrimination or disadvantage or due to factors that especially apply to people who share that characteristic, they have needs that are different from the needs of others. This does not mean that the needs of a group have to be entirely unique from the needs of other groups to be considered 'different'. Needs may also be different because, disproportionately, compared to the needs of other groups, they are not being met or the need is of particular importance to that group.
For example, all pregnant women need good antenatal care. However, the high rate of infant mortality among Gypsies and Travellers may indicate that they have different needs for antenatal, maternity and child health services, such as requiring more frequent antenatal health checks."
"The seriousness of the relevant disadvantage, the degree to which the need is different and the extent of the low participation in the particular activity will need to be balanced against the impact of the action on other protected groups, and the relative disadvantage, need or participation of these groups."
The claimants' submissions on section 158
"The concept of proportionality contained in section 15 is undoubtedly derived from European Union law, which is the source of much of our anti-discrimination legislation. Three elements were explained by Mummery LJ in R (Elias) v Secretary of State for Defence  1 WLR 3213, para 165:
'First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?'
This three-fold formulation was drawn from the Privy Council case de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69, 80, which was itself derived from the Canadian case R v Oakes  1 SCR 103. However, as Lord Reed JSC explained in Bank Mellat v HM Treasury (No 2)  AC 700, 788, para 68 et seq, this concept of proportionality, which has found its way into both the law of the European Union and the European Convention on Human Rights, has always contained a fourth element. This is the importance, at the end of the exercise, of the overall balance between the ends and the means: there are some situations in which the ends, however meritorious, cannot justify the only means which is capable of achieving them. As the Court of Justice of the European Communities put it in R. v Minister for Agriculture, Fisheries and Food, ex parte Fedesa (Case C-331/88)  ECR 1-4023, para 13, 'the disadvantages caused must not be disproportionate to the aims pursued': or as Lord Reed JSC himself put it in the Bank Mellat case  AC 700, 791, para 74, 'In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.'"
The explanatory notes to section 158 of the 2010 Act state (at paragraph 512):
"The extent to which it is proportionate to take positive action measures which may result in people not having the relevant characteristic being treated less favourably will depend, among other things, on the seriousness of the relevant disadvantage, the extremity of need or under-representation and the availability of other means of countering them. This provision will need to be interpreted in accordance with European Law which limits the extent to which the kind of action it permits will be allowed."
The foregoing explanation is echoed at paragraph 10.22 of the statutory code of practice, as follows:
"The seriousness of the relevant disadvantage, the degree to which the need is different and the extent of the law participation in the particular activity will need to be balanced against the impact of the action on other protected groups, and the relative disadvantage, need or participation of these groups."
The statutory code of practice also refers to the EU origin of "proportionality" for present purposes (paragraph 5.32). At a late stage in the argument before us Mr Wise QC presented to the court a lengthy extract from the committee debate on clause 152 of the bill that became section 158 of the 2010 Act. He referred to certain remarks by the then Solicitor General, Vera Baird QC, MP, touching on the scope and effect of the relevant clause. We admitted the Hansard extract "de bene esse", but on consideration do not believe that it is admissible in accordance with the criteria set out in R. v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Limited  UKHL 61;  2 AC 349. In any event we drew no additional assistance on the meaning and scope of section 158 from the observations of the Solicitor General.
Section 193 of the 2010 Act: the charities exception
"That section [section 193] does not apply to race, so far as relating to colour".
"… Our sole criterion is that the applicants are of the Orthodox Jewish faith. This is certainly not an issue of race; it is purely about religious observance. We respond to people from many ethnic backgrounds. The common factor is a commitment to the Orthodox Jewish way of life."
In any event there is no evidence that "colour" plays any part at all in the admission of persons to the Orthodox Jewish community. On the evidence a person of any "colour" may join the community.
"This exception [that is, the exception just summarised in the preceding paragraph] does not apply if the group of people who are to receive benefits under the charitable instrument is defined by colour…" (emphasis added).
"This section [section 193] allows charities to provide benefits only to people who share the same protected characteristic…. If this is in line with their charitable instrument …" (emphasis added).
B. The challenge against Hackney under the 2010 Act
"[A] policy which directly favours one racial group will be held to constitute racial discrimination against all who are not members of that group."
"… a declaration that [Hackney's] allocation of social housing by (i) nomination of social housing applicants to [AIHA], subject to the Orthodox Jewish Rule … is unlawful…" (emphasis added).
The claimants' case that Hackney has failed to comply with relevant principles of public law
"We are committed to providing excellent services that ensure the widest possible access to housing and prevent discrimination on the grounds of race, religion, gender or marital status, sexual orientation or disability."
The claimants' challenge under section 11 of the Children Act 2004