European Court of Human Rights (Fourth Section) (App. No. 19839/21) [2022] ECHR 19839/21, 16 June 2022
This was an appeal to the ECtHR from the decision of the Supreme Court in R (Z & Anor) v Hackney LBC & Anor [2020] UKSC 40 (see previous post). The European Court of Human Rights dismissed the application to the Court as inadmissible. The Applicant complained that the preferential treatment of members of the Orthodox Jewish Community (“OJC” below) breached her Article 8 and 14 ECHR rights. The Court accepted that Article 8 was engaged for the purposes of Article 14 but found that the preferential treatment in issue was proportionate and lawful. (References to LBH and AIHA below are to the London Borough of Hackney and the Orthodox Jewish housing association which managed the accommodation whose tenancy criteria Z challenged.) According to the Court:
- Article 14 of the Convention does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them [citing Runkee and White v. the United Kingdom, nos. 42949/98 and 53134/99, §35, 10 May 2007]. That was clearly at issue in the present case: in this regard, the Court notes that the Divisional Court addressed in great detail the significant hardship faced by the OJC in the private rental sector. In particular, members of the OJC faced high levels of poverty affecting employment and education opportunities; prejudice when renting in the private sector on account of their appearance, language and religion; and an exponential increase in anti-Semitic hate crime (see paragraph 9 above). Members of the OJC also constituted a significant portion of those on the waiting list for larger accommodation owing to their family sizes and thus had a pressing need for properties that would reduce the particular and intensified risk of eviction from overcrowded accommodation.
- Furthermore, the Court has repeatedly held that because the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy (see Runkee and White, cited above, §36). It is true that the scope of the margin of appreciation afforded to the Contracting State may be narrower where rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community are concerned (see Connors, cited above, § 82). However, while that may be so in the sphere of housing where the interference consists in the loss of a person’s only home (see, for example, Ivanova and Cherkezov v. Bulgaria, no. 46577/15, § 54 21 April 2016), that was not the case here. On the contrary, the applicant, who was housed in temporary accommodation, complains about a restriction on the properties available to her for longer-term rehousing …
- In the present case the domestic courts carefully considered whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised by the arrangement between LBH and AIHA, and at each level of jurisdiction they agreed that it was objectively and reasonably justified. The Divisional Court observed that the AIHA’s properties in LBH accounted for only 1% of the units of general needs housing potentially available for letting in the area, and its lettings each year were less than 1% of social housing lettings. Moreover, members of the OJC constituted almost 83% of LBH’s waiting list for accommodation with six or more bedrooms, and 50% of those waiting for five-bedroom accommodation. It concluded that, in those circumstances, and given the acute scarcity of such accommodation, it was proportionate that properties such as those operated by AIHA were allocated to members of the OJC who had need of the accommodation …
- In equally detailed judgements both the Court of Appeal and the Supreme Court agreed that the Divisional Court had made appropriate findings on the basis of the evidence before it and that it had applied the correct proportionality exercise. On the basis of the Divisional Court’s findings, they noted that the effect of AIHA’s allocation policy (taken at its most restrictive) was to withdraw 1% of units from the pool of potentially available properties for letting. Consequently, the disadvantage to persons who were not members of the OJC was minuscule …
- In light of the foregoing, the Court cannot but conclude that in the circumstances of the case the arrangement between LBH and AIHA did not exceed the wide margin of appreciation afforded to the national authorities in such cases.