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Farrer & Co | Positive action under the Equality Act 2010

A charitable housing association which offers housing only to members of the Orthodox Jewish community has been told that its arrangements are not unlawful under the Equality Act 2010 (the Act). This is despite it being accepted that the arrangements constituted acts of direct discrimination. The court ruled such arrangements may be lawful where they fall within the exception for “positive action” under the Act (section 158). This exception applies if the action taken is a proportionate means of helping people with protected characteristics to:

  • overcome or minimise disadvantages they face
  • meet their needs, and/or
  • encourage their participation in activities in which participation by such persons is disproportionately low.

The Claim

R v Hackney London Borough Council (Hackney) & Agudas Israel Housing Association (AIHA) was a claim by a single mother and her children for judicial review of AIHA's social housing arrangements. In dire need of housing, the claimants were at the top of Hackney's waiting list. They required a property to meet their specific needs, including a large number of bedrooms. AIHA had such housing but did not make them an offer, in effect because they were not Orthodox Jews. This was in line with AIHA’s charitable objects but was an act of direct discrimination.

The court’s ruling – the exception in section 158 of the Act

The court judged the arrangements lawful, as they fell within the exception in section 158. The explanatory notes to the Act explain the exception:

"…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."

AIHA’s position was that it reasonably believed that the positive action would help to alleviate disadvantages faced by the community and meet their specific needs.

The court’s ruling – disadvantages and needs

The court noted the Jewish Orthodox community had high levels of poverty and deprivation, with associated low levels of home ownership. This disadvantage was accompanied by rising incidents of anti-Semitism. The community faced prejudice in renting in the private sector. The relevant disadvantages had to be connected to the protected characteristic, but not caused by it.

The court also accepted members of the community had specific needs, different from groups who did not share their protected characteristic. These included:

  • needing to live relatively close to each other with a view to reducing apprehension and anxiety regarding personal security, anti-Semitic crime and abuse, and
  • requiring disproportionately large housing, to accommodate larger than average families.

“We are satisfied…that AIHA’s arrangements for allocating housing…enable them both to avoid the disadvantages and to meet the needs to which we have referred.”

Proportionality

The court also found the arrangements were proportionate. The disadvantages of the community were “many and compelling” and were closely related to the matter of housing. Orthodox Jewish applicants constituted 83 per cent of Hackney’s waiting list for accommodation with six or more bedrooms. Further, AIHA provided a very small proportion of social housing in Hackney (around one per cent). The court warned that the outcome of the analysis might not be the same where a service provider enjoyed a larger share of the market.

Section 193

A further exception cited by AIHA is in section 193 of the Act. This provides that a charity may not contravene the Act if it restricts provision of benefit to persons sharing a particular characteristic, so long as it acts in pursuance of a charitable instrument and the provision of benefits is (i) a proportionate means of achieving a legitimate aim or (ii) is for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic. For the reasons given above, the court found the provision of benefits proportionate and for the purpose of compensating for a disadvantage linked to the protected characteristic.

The challenge against Hackney

It was also claimed that Hackney could not lawfully nominate AIHA properties to applicants when it knew AIHA only allocated properties to the Orthodox Jewish community. As AIHA’s arrangements were found to be lawful, the claimants' case against Hackney fell away. 

Conclusion

The difference between positive action and direct discrimination is subtle. If your charity wants to take positive steps to assist people who suffer for reasons connected to their protected characteristic, seek advice at an early stage. Each case will turn on its facts, and a careful analysis of disadvantages and needs, and the effect the positive action will have on other groups, is essential.

The case is a reminder that the Act serves not only to prevent discriminatory acts, but to empower the taking of action, even where that may appear discriminatory. This is of course a response to the reality of an unequal society, where the prevention of action alone may simply preserve the status quo. Where particular groups suffer for reasons connected to their protected characteristic, the Act rightly permits organisations to take positive steps to alleviate such suffering, to meet their needs, and help them overcome their particular disadvantages.

If you require further information about anything covered in this briefing, please contact Joseph de Lacey, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, June 2019

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