European Court of Human Rights confirms charities may discriminate in certain circumstances

The European Court of Human Rights (ECtHR) has rejected a discrimination claim against a housing charity as “manifestly ill-founded”. The court concluded that the charity’s housing policy, which favoured members of the Orthodox Jewish community, was objectively and reasonably justified.

What was this case about?

Agudas Israel Housing Association Ltd (AIHA) is a charity based in North London. It provides a small number of properties to the London Borough of Hackney (LBH) on the agreement that LBH will only nominate members of the Orthodox Jewish community for AIHA housing.

The claim was brought by a single mother of four (LF) who was seeking permanent housing and is not a member of the Orthodox Jewish community. LF alleged that AIHA and LBH had unlawfully discriminated against her on the basis of her race and/or religion.

You can find more about the background to this case in this article from 2020.

What did the European Court of Human Rights decide?

LF’s claim had already been dismissed by the High Court, Court of Appeal, and Supreme Court of England and Wales. Each of those courts found that AIHA and LBH had not breached the Equality Act 2010.

LF took her case to the ECtHR, claiming that AIHA and LBH were in breach of Article 8 (the right to respect for private and family life) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR).

The ECtHR concluded that:

• Although there is no specific right to housing under Article 8 of the ECHR, where a benefit is provided by the state (as it was here), it should be provided in a way which complies with Article 14. The ECtHR therefore accepted that Article 8 was engaged in LF’s case, in conjunction with Article 14.
• LF’s situation was directly comparable with members of the Orthodox Jewish community, in that LF was seeking housing for a large family.
• The basis on which LF had been denied the housing was that she was not a member of the Orthodox Jewish community.

However, LH’s claim failed because the ECtHR concluded that the difference in treatment between LF and members of the Orthodox Jewish community was objectively and reasonably justified. In arriving at this conclusion, the ECtHR 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.
• The fact that only a nominal percentage (1%) of LBH housing was provided by AHIA and, conversely, a significant percentage of those waiting for LBH housing were members of the Orthodox Jewish community (83%), meaning that the arrangement between AIHA and LBH was a proportionate means of achieving the legitimate aim of correcting those factual inequalities.
• 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.

What does this mean for charities?

The ECtHR’s decision confirms that charities providing services or aid to particular disadvantaged groups will not be acting unlawfully, as long as the means adopted by the charity to combat that disadvantage are objectively reasonable and proportionate.

If your charity restricts services to people who have particular protected characteristics (e.g. age, religion, sex, sexual orientation), you need to ensure that you’ve thought about how you can justify that policy. Can you show that you’re alleviating disadvantage, meeting a particular need, or reducing under-representation? Or does your governing document permit you to restrict benefits to a particular group? Is restricting services in this way a proportionate way of achieving that aim?

If you have questions about your charity's policies or practices, or if you are unsure about whether your charity can rely on a defence to discrimination, get in touch with our specialist charity discrimination lawyers.

What questions remain unanswered?

The ECtHR didn’t answer LF’s claim that the Equality Act 2010 provides broader exemptions for charities from the prohibition against discrimination than Article 14 of the ECHR, and that the Equality Act is therefore incompatible with Article 14.

This uncertainty only affects charities that rely on a provision in their governing document permitting them to restrict benefits to people who share the same protected characteristics. If this applies to your charity, the safest approach is to consider whether it’s proportionate for your charity to operate in this way, and then to keep records of your decision on this issue should it be challenged in the future.