An attorney for the non-Jewish woman, who has not been named, argued the policy ‘had no black, no dog, no Irish’, a reference to signs pinned by some owners decades ago.
But the high court, the court of appeals and now the supreme court have all ruled that it is legal because it overcomes the social and economic disadvantage faced by the community of Haredi Jews in the region. Some do not speak English and face anti-Semitism, in part because of their traditional clothing.
The charity’s 470 homes have been listed by the Borough of Hackney as part of the wider social housing supply, which is under pressure in this part of the capital. Six of them showed up during a time when the complainant, a mother of four, was at the top of the waiting list, but was not offered one. She alleged that the council and the housing charity let Orthodox Jewish families “skip the line.”
The charitable goals of the housing association state that it is “primarily for the benefit of the Orthodox Jewish community”. The housing application form asks if applicants are “strictly Shabbath and Kashrut observers [dietary laws]What synagogue and schools they use and whether they are ethnically “Ashkenazi Orthodox Jews” or “Sephardic Orthodox Jews”.
In delivering a judgment, Lord Sales said the lower courts were correct that the charity’s use of affirmative action was proportionate and legal, under the Equality Act 2010, in order to correct the disadvantage the community faced. He said the problem was not a racism issue, as the housing charity discriminated against based on religious observance.
Ita Symons, chief executive of Agudas Israel, welcomed the decision and said she “defends the right of faith-based charities to prioritize members of their own faith.”
She said: “Had this matter gone the other way around, it could have had serious ramifications for the entire faith-based charitable sector. [The judgment will] enable other faith-based charities to continue to provide for the needs of their communities for the foreseeable future.
Lawyers for the plaintiff argued that Hackney had a needs-based housing allowance policy, so if members of the Orthodox Jewish community were in need, they would be helped. So there was no downside to overcome. The appeals court did not accept this, saying the law allows for the treatment of those who suffer from a disadvantage because of a protected characteristic.
Courts have examined how much Hackney’s Orthodox Jews are poorer and more likely to live in crowded conditions than the wider Jewish community and are less willing to live outside Stamford Hill. They also have a higher demand for larger homes due to their generally larger family size.
The High Court also admitted that due to “widespread and growing overt anti-Semitism in our society,” many Haredi Jews face barriers to hiring in the open market. Rabbi Abraham Pinter, a prominent figure in Stamford Hill until his death from Covid-19 in April, testified that “being part of a community, both physically and spiritually, is a prerequisite for fulfillment of the life of an Orthodox Jew ”.
The High Court weighed the advantage for the Orthodox Jewish community of Stamford Hill against the disadvantage of the community at large, and found it proportionate. He noted that Agudas Israel was a small housing provider, but similar discrimination from a larger one might not be allowed.
The appeals court ruled that finding the charity’s policy to be illegal would have offered only a “tiny” benefit to non-Orthodox Jews and fundamentally undermine the charitable purposes of the housing association.