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HCR Law Events

15 November 2022

Lawful discrimination by charities – case note

A recent decision in the case of LF v United Kingdom (2022) by the European Court of Human Rights (ECHR) found that a refusal to house an individual in accommodation provided by a charity because she was not part of the Orthodox Jewish community was consistent with the European Convention on Human Rights.

Background

Agudas Israel Housing Association Ltd (AIHA) is a charity which provides housing for members of the Orthodox Jewish community. AIHA had arrangements with the London Borough of Hackney (LBH) to make some of its housing available to individuals who applied to LBH for social housing on the basis that LBH would only nominate members of the Orthodox Jewish community.

An individual (LF) (who was not a member of that community) sought housing but was not put forward to AIHA. LF challenged both AIHA’s housing criteria and its agreement with LBH on the grounds that they amounted to unlawful direct discrimination contrary to the Equality Act 2010.

The Divisional Court decided that there had been no breach of the Equality Act and LF’s appeals to the Court of Appeal and Supreme Court failed.

LF brought a claim before the ECHR that she had been discriminated against based on her religion in breach of her Convention rights.

Decision of the ECHR

The ECHR concluded that LF had been treated differently from members of the Orthodox Jewish community as she had been denied housing accorded to members of that community. However, the court accepted that the difference in treatment flowing from the arrangements between LBH and AIHA was objectively and reasonably justified. In arriving at this conclusion, the ECHR took into account that:

  • The arrangement between LBH and AIHA corrected factual inequalities between the Orthodox Jewish community and other groups – the Orthodox Jewish community faced significant hardships in the private rental sector, including high levels of poverty and experiences of hate crime.
  • AIHA’s properties in LBH accounted for only 1% of the housing available for letting and a significant percentage of those waiting for the relevant type of housing were members of the Orthodox Jewish community (83%). Given the acute scarcity of such accommodation, it was proportionate that properties operated by AIHA were allocated to members of that community who needed accommodation.
  • National authorities are given a wide margin of appreciation to decide what is socially and economically in the public’s interest, and to take measures accordingly.

The case offers an interesting perspective on when charities may be able to discriminate in pursuing their charitable objects.

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Stephen Cole, Senior Associate

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