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Targeted provision of social housing

Are housing associations able to make targeted provisions to meet the needs of minority groups and refuse to offer housing to certain applicants? John Murray examines a recent European Court of Human Rights ruling.

This case concerned a single mother, known as L.F., who was seeking social housing for her family, and a charity's policy of making social housing available primarily for members of the Orthodox Jewish Community.

After having her claim dismissed in the High Court, the Court of Appeal, and the Supreme Court, L.F. took her long-running dispute to the European Court of Human Rights (ECHR). The ECHR recently handed down judgment on this question in the case of L.F. v The United Kingdom (application no. 19839/21).

The facts

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L.F. and her four children, two of whom have been diagnosed with autism, all lived in the London Borough of Hackney (LBH). In 2020, the High Court considered her a priority case, and ordered that she should be rehoused into more suitable accommodation. At the time, there was social housing stock available from Agudas Israel Housing Association. However, due to a surplus in demand for social housing from members of the Orthodox Jewish Community, in practice all of its properties were allocated to members of the Orthodox Jewish Community due to the charity’s policy. As a result, LBH didn’t apply to Agudas on her behalf. L.F. challenged this policy on the grounds that it discriminated against her because she was not Jewish.

Agudas argued that its policy was necessary as the community suffered disadvantages when it came to social housing, including discrimination on the basis of large families, unique housing requirements and levels of poverty.

The High Court dismissed L.F.’s claim, citing the difficulties the Orthodox Jewish Community face in accessing housing. They noted there had been an exponential rise in antisemitism, giving rise to a need to live close together for security purposes, and their large family sizes meant they had a particular requirement for properties which reduced the intensified risk of eviction from overcrowded accommodation.

L.F challenged the decision all the way up to the Supreme Court, which in 2020 upheld the lower courts judgements, before lodging an application with the ECHR.

ECHR judgment

The ECHR unanimously rejected L.F.’s challenge, reiterating that Article 14 of the Convention did not prohibit treating groups differently in order to correct ‘factual inequalities’ between them. Given that there was such a need, the ECHR held that the policy was ‘objectively and reasonably justified’, and that the application to challenge it was ‘manifestly ill-founded’. The ECHR highlighted that in particular, the Orthodox Jewish community faced significant hardship in accessing accommodation, and that the domestic courts had carefully considered the proportionality of Agudas Israel’s allocation policy. Furthermore, the ECHR said that  domestic authorities are better placed than an international judge to appreciate what is in the public interest on social or economic grounds. The application was declared inadmissible, and the decision is final.

Reflections

This decision will be welcomed by similar charities who can take comfort in knowing they are legally able to take positive action as part of diversity measures. They are able to have policies that exist to address disadvantages and restrict benefits to those who may have protected characteristics if their organisation’s own objective is to seek to overcome or prevent disadvantages caused by other protected characteristics. The ECHR has confirmed that, should the need for social housing by the Orthodox Jewish Community ever be met, then, and only then, must the housing stock be opened to those who are not in the Orthodox Jewish Community. Had the case gone the other way it would have had serious ramifications for those in the faith charity sector.

John Murray is a Partner at Ward Hadaway.

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