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Discrimination: Positive Action

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Was a policy of restricting social housing to a particular community proportionate as a form of positive action?

Yes, held the Court of Appeal, in R (on the application of Z) v London Borough of Hackney & Agudas Israel Housing Association Limited, with an interesting analysis on the issues of justification and proportionality.

A housing association provided social housing only to members of the Orthodox Jewish (Haredi) community. Z, a Hackney resident, challenged this.

The Divisional Court held that the policy was justified as 'positive action' because it was a proportionate means of achieving a legitimate aim, relating to the community's need for personal security amidst increasing anti-semitism and specific housing requirements (s158 Equality Act).

Before the Court of Appeal, the only challenge was whether the policy could be justified as proportionate. The Court held that the practical effect of the policy was proportionate. It found that it was obvious why the difficulties facing the community would be ameliorated by the policy, and while that may be impossible to assess with any precision, there was no doubt that it did. The Divisional Court had assessed the impact that this had on other groups and individuals (such as Z). The impact on the pool of properties available to these groups was miniscule but the impact on the Orthodox Jewish community of changing it would have been significant.

The Court also held that under s193 (where a charity is seeking to prevent or compensate for a disadvantage linked to a protected characteristic) the test for proportionality does not apply. Instead, the issue is whether the purpose of providing the benefit is to meet that aim.

Thanks to James English of Ward Hadaway for preparing this case summary.