The High Court has refused an application for judicial review (JR) of a Jewish housing association’s policy of allocating homes to Orthodox families over non-Jewish people.

In R v Hackney London Borough Council and Agudas Israel Housing Association (AIHA), published yesterday, the Divisional Court found in favour of AIHA.

The JR application, brought by a non-Jewish mother and her son, challenged AIHA’s policy under the Equality Act 2010 on the basis that it prevents people who are not members of the Orthodox community from becoming tenants and discriminates against non members.

AIHA was founded in 1986 as a charitable housing association to serve the UK’s Orthodox Jewish community. The claimants wanted to be allocated a home in AIHA’s new Aviv development in Stamford Hill, North London, but were not given the chance to bid.

The judgment, handed down by Lord Justice Lindblom and Sir Kenneth Parker, found AIHA’s arrangements are ‘justified as proportionate’ and that the ‘disadvantages and needs of the Orthodox Jewish community are many and compelling’.

It added: ‘We recognise the needs of other applicants for social housing, but in the particular market conditions to which we have referred, AIHA’s arrangements are proportionate in addressing the needs and disadvantages of the Orthodox Jewish Community, notwithstanding the fact that in those market conditions, a non-member cannot realistically expect AIHA to allocate to him or her any property that becomes available.’

Assessing section 158 of the 2010 act the court found that the evidence ‘demonstrates that the “needs” of the Orthodox Jewish community are indeed different’. ‘The members of that community have a relevant need to live relatively close to each other, with a view to reducing apprehension and anxiety regarding personal security, anti-Semitic abuse and crime,’ it added.

The court also recognised prejudice, including in the private rental sector, against Orthodox Jews on account of their appearance, language and religion.

The judgment added that the London borough of Hackney had ‘no legal or realistically practical means’ of procuring or inducing AIHA to abandon, in whole or part, that aspect of AIHA’s arrangements that the claimants find objectionable, but which is ’entirely lawful’.

AIHA was represented by London and Tel Aviv firm Asserson Law. The firm also acted for the claimants in the case against North London coroner Mary Hassell which challenged her ‘cab rank’ policy of not prioritising burials on account of religious belief.

Partner Elliot Lister said: ‘The Jewish community and even more so the obviously Orthodox Jewish community, faces an ongoing battle against anti-Semitism, recognised by their lordships as widespread and increasing and overt. The Orthodox Jewish community’s members’ way of life requires them to live close by each other as a community, to the extent that many prefer to stay in unsuitable properties than to move away from their community. For an organisation that was established to counter discrimination and has that as its mission, this is a particularly important judgment.’

London-based firm Hopkin Murray Beskine, which acted for claimant, said it intends to appeal.

Rebekah Carrier, solicitor and director, said: ‘This is a very surprising case which involves direct discrimination on the grounds of religion. My clients have been assessed as in the very greatest need of housing by their local housing authority, but the discrimination in this context means that a very scarce publicly funded resource, social housing, is being allocated not to those assessed as in the greatest need but to those with the right religion.’

She added: ‘There are many housing associations which, like Agudas Israel, have a proud history of providing good housing to particularly disadvantaged communities, but we could not find any that applied a similar religion or race based criterion. The judgment is very worrying as it may cause other organisations who believed that the Equality Act outlawed this sort of practice to think again. My clients are very disappointed and we intend to appeal.’

Counsel for AIHA was Christopher Baker with Rea Murray at 4-5 Grays Inn Square. Ian Wise QC and Michael Armitage of Monckton Chambers acted for the claimants while Matt Hutchings QC (instructed by Hackney Legal Services) of Cornerstone Barristers acted for the London Borough of Hackney.