R (Z) v Hackney London Borough Council (Supreme Court)

In brief

Supreme Court, 16 October 2020. Unanimous (appeal DISMISSED). Five Justices: Lord Sales (leading judgment; Lord Reed, Lord Kerr and Lord Kitchin agreeing) with LADY ARDEN giving a SEPARATE CONCURRING judgment [118]-[121]. No dissent. Agudas Israel Housing Association (AIHA), a charity providing social housing in Stamford Hill primarily to the Orthodox Jewish (Haredi) community, refused a non-Orthodox single mother nominated by Hackney Council. Because community demand exceeded AIHA's stock, its properties were in practice allocated exclusively to Orthodox Jews. AIHA ADMITTED prima facie direct religious discrimination and relied on two EA 2010 defences — and won on both, independently: (1) s.158 (general positive action) and s.193(2)(a) (charities exemption, proportionality limb): the policy was a proportionate means of addressing the community's disadvantage. Proportionality assessed on a GROUP basis, not by individual comparator [80]-[81]. The policy's de facto BLANKET exclusionary effect did NOT make it disproportionate, given genuine severe undersupply [77]. (2) *** THE MOST CITABLE HOLDING: s.193(2)(b) IMPORTS NO PROPORTIONALITY REQUIREMENT AT ALL *** [95]-[97], [116]. Parliament's omission of a proportionality qualifier from limb (b) was deliberate and reading one in via s.3(1) HRA would render the sub-paragraph redundant. A charity acting within its charitable instrument for the purpose of preventing or compensating for a characteristic-linked disadvantage satisfies the exemption WITHOUT MORE. Limb (b) is a lower bar than proportionality — not merely 'not necessity'. A late-raised Race Directive argument also failed (issue 5, [94], obiter).

Key provisions

• [21] — EA 2010 s.193(1)-(2), the charities exemption (verbatim): "(1) A person does not contravene this Act only by restricting the provision of benefits to persons who share a protected characteristic if (a) the person acts in pursuance of a charitable instrument, and (b) the provision of the benefits is within subsection (2). (2) The provision of benefits is within this subsection if it is (a) a proportionate means of achieving a legitimate aim, or (b) for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic." — respondent/framework — TWO INDEPENDENT LIMBS. Check whether (b) is available BEFORE conceding a proportionality fight.
• [95]-[97], [116] — s.193(2)(b) requires NO proportionality: The omission of a proportionality qualifier from limb (b) was a deliberate Parliamentary choice, distinct from limb (a); reading one in via s.3(1) HRA would improperly render (b) redundant — respondent/framework — THE single most citable holding in the case. Our previous record blurred this into a generic proportionality statement and lost it entirely.
• [19]-[20], [38]-[42], [79]-[88] — EA 2010 s.158, general positive action: A CO-EQUAL, INDEPENDENTLY SUFFICIENT ground. Exemption for action addressing characteristic-linked disadvantage/need/under-representation, if proportionate. Both issues (3) and (4) are framed as 'section 158 and/or section 193'. NB housing falls under s.158, NOT s.159 (which is the employment-specific recruitment/promotion provision) — dual — arguably more important to flag than s.193 alone; our previous record omitted s.158 entirely.
• [76]-[77], [80]-[81] — Group-based proportionality; a blanket-in-practice policy upheld: Proportionality assessed on a GROUP basis, not individual comparator. A de facto blanket policy is NOT automatically disproportionate where genuine undersupply persists — dual — DOUBLE-EDGED: helpful to a respondent with genuine undersupply; a claimant should test the undersupply premise. Methodologically important for EqIA positive-action work.
• [6] (referencing s.194(2)) — The colour carve-out: s.194(2) disapplies the s.193 charities defence where the discrimination is on grounds of COLOUR — framework — check for a colour dimension before assuming s.193 is available.
• [118]-[121] — Lady Arden, separate concurrence: Scope of appellate review: an appellate court should not re-run a first-instance/Divisional Court evaluative proportionality judgment absent error — framework — a distinct, separately citable procedural principle. Our previous record did not record that a second judgment existed.
• [117], [121] — Outcome: "I would dismiss the appeal" (Lord Sales); "I agree with the judgment of Lord Sales" (Lady Arden). AIHA and Hackney LBC won; the appellant lost on all five issues — framework.

When relevant

Single-characteristic charities providing restricted services: single-sex, single-religion, single-race. EA2010 Sch.3 para 18 charities exception. Positive action by charities. SSS analysis where the service provider is a charity. Any challenge to a charity's restriction of services or membership to persons sharing a protected characteristic.