There are exemptions to this prohibition. A charity is not prevented from restricting the provision of benefits to particular groups of persons if it can be justified as a proportionate means of achieving a legitimate aim or is for the purpose of ‘preventing or compensating for a disadvantage linked to the protected characteristic’ (S. 193 EqA). Nor does the prohibition prevent a person from taking positive action to alleviate disadvantage (S. 158 EqA).
The Agudas Israel Housing Association (‘AIHA’) is a charitable housing association with properties in a part of Hackney with a substantial Orthodox Jewish community. AIHA’s primary object is to provide social housing for the benefit of the Orthodox Jewish community. LB Hackney has nomination rights to properties owned by AIHA. Hackney nominates those on the housing list to AIHA who are not Orthodox Jewish, but in practice, given the dearth properties in the area, only members of the Orthodox Jewish community are allocated housing.
The Appellant, a mother with four children who is not a member of the Orthodox Jewish Community, challenged the allocation policies of Hackney and AIHA. It was common ground that AIHA’s arrangements for allocating housing amounted to direct discrimination on the grounds of religion. The Appellant was unsuccessful before the Divisional Court which held, having considered evidence about the specific housing needs of members of the Orthodox Jewish Community and about anti-Semitism, that the discrimination was lawful for two reasons. First, because the arrangements were a proportionate means of overcoming a disadvantage shared by members of the Orthodox Jewish Community, and thus permitted by S. 158 EqA. Second, the arrangements were made pursuant to a charitable instrument, and were either a proportionate means of achieving a legitimate aim; or were for the purpose of compensating for a disadvantage linked to a protected characteristic, and permitted by S. 193 EqA.
The Court of Appeal robustly dismissed the appeal. AIHA’s allocation policy was permitted by S. 193 EqA because it prevented disadvantage. As regarded the proportionality assessment, which is an alternative route to exemption under S. 193, the lower court had heard detailed evidence and an appeal court should be slow to interfere. There had not been an error of law that would allow the appeal court to interfere. Further, the exception under S. 158 was engaged, allowing AIHA to take positive action to alleviate disadvantage.