Discrimination in favour of one section of society over others can in some cases be justified as a proportionate means of achieving a legitimate aim. In a guideline ruling, the Court of Appeal found that that exception applied to a social housing charity that preferred Orthodox Jewish applicants when allocating tenancies.
The charity’s objective was to benefit society as a whole, but its rules gave priority to Orthodox Jews. Pressure on its housing stock was such that, in practice, tenancies were only ever granted to members of that community. A homeless mother of four children, who was not an Orthodox Jew, launched proceedings under the Equality Act 2010, arguing that the charity’s policy was unlawfully discriminatory.
Her claim was, however, dismissed by the High Court on the basis that the charity’s policy was a proportionate means of overcoming a number of disadvantages shared by members of the Orthodox Jewish community. Levels of poverty and deprivation were unusually high amongst Orthodox Jews in the relevant area and their tendency to have larger families meant that they had a particular need for larger homes. They were at risk of anti-semitic harassment and assault and had an understandable desire to live among their own community. There was also evidence that they faced prejudice in the private rental market.
In dismissing the mother’s appeal against that ruling, the Court of Appeal noted that the homes provided by the charity made up a minuscule proportion – about 1 per cent – of the overall social housing stock in the area. Members of the Orthodox Jewish community have many and compelling needs associated with their faith, which is itself a protected characteristic. The allocation of the charity’s properties to non-members of the Orthodox Jewish community would fundamentally undermine its charitable objectives and there was no more limited means of achieving the legitimate aim.
The Court also rejected the mother’s challenge to the local authority’s policy of only referring Orthodox Jewish applicants to the charity. The charity’s allocation rules being lawful, the council had no legal right or power to demand that they be changed. Given the high level of child poverty in the Orthodox Jewish community, the council’s policy was also justified by its duty to promote child welfare.
