High Court rules AIHA justified in prioritising Orthodox Jews
The victory of Agudas Israel Housing Association (AIHA) in the High Court last week was met with relief across the Charedi community and beyond.
For those who missed it, this was essentially a discrimination case based on the Equalities Act 2010. The claimant was a non-Jewish single mother of four, including two disabled children. She brought an application for judicial review, funded by legal aid, challenging AIHA’s policy of prioritising Orthodox Jewish families in its housing allocations, and against Hackney Council for nominating Orthodox Jewish families to AIHA properties.
The judgement http://www.bailii.org/ew/cases/EWHC/Admin/2019/139.html published on 4th February 2019 was much more than a vindication for one of the most important charities in the Charedi community.
A question of fundamental importance and enormous ramifications to the community had been put before the High Court: to what extent is it lawful for Jewish charitable organisations to provide their facilities and services exclusively to people of their own faith community?
The two judges who looked at the circumstances of the case ruled that AIHA, and Hackney Council, were entirely within the law, and effectively threw out the claim.
However, the case has brought a number of salutary reminders to all of us who operate in the space of funding or providing services specifically for Orthodox Jews.
- We live in challenging times. Unfortunately, religion is not popular in 2019. There is much less sympathy for services targeted at Orthodox Jews than, say, charities for disabled or older people (also protected under the Equalities Act 2010). There are people, sometimes driven by ignorance, grievance or malice, who are ready to bring discrimination claims. Sadly, one of the witnesses lined up against AIHA was a rabbi from one of the progressive branches of Judaism, who argued that the housing related ‘needs’ of Orthodox Jews are not actually necessities, and that it is quite possible to practice Orthodox Judaism without a kitchen with two sinks. Fortunately, the judges looked beyond this specific example and found that there are many real needs that justify AIHA’s targeted provision for Orthodox Jews.
- This is a sharp reminder that discrimination has to be lawful. The starting presumption is that organisations may not discriminate in the provision of goods, services or grants. The Equalities Act 2010 sets out the circumstances in which organisations may lawfully target their provision at a specific group to the exclusion of others. Essentially, the law allows charities to discriminate – or take ‘positive action’ – in favour of a group to compensate for specific needs and disadvantages. But there are very specific tests that have to be met to justify this.
Any charity that favours a particular group should understand the legal basis on which it is acting, and at Interlink we recommend that their Equalities Policy should explain this.
- AIHA’s stated object in its charitable instrument is to provide housing primarily for the Orthodox Jewish community. Most – but by no means all – community charities have similar restrictions specified within their charitable objects, which affords them a good deal of protection against discrimination challenges. A charity whose legal charitable objects do not declare the specific beneficiary group has a much higher bar to reach in order to justify the positive action it is taking in favour of the group it serves.
As a registered social landlord providing scarce and highly valuable housing, AIHA was more likely than other charities to get caught up in a legal challenge of this nature. But any community organisation contracted by the state to provide a service to Orthodox Jews could conceivably find themselves wrapped up in a similar case. And while charitable organisations funded entirely privately would not be exposed to judicial review in the same way, they could certainly find themselves subject to a legal action under the Equalities Act 2010 for providing solely to Orthodox Jews.
Before celebrating this ruling, we should remember that the claimant in the AIHA case has already declared their intention to appeal. It remains to be seen whether legal aid will be granted. But until it is well and truly over, this important case remains a concern and has implications well beyond AIHA’s vital mission to provide for Orthodox Jews in housing need.
LOOK OUT FOR OUR NEXT EQUALITIES ACT SEMINAR, COMING SOON IN PARTNERSHIP WITH LAW FIRM WOMBLE BOND DICKINSON