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INTRODUCTION - LL1005 ENGLISH LEGAL SYSTEM Assignment
The presented report is drafted based on the material facts received by Ms Bell who is a client of the firm and who has claimed of been subjected to discrimination on the grounds of religion and race. Hence, the report highlights the legal authorities and laws of the United Kingdom that provides for the protection of citizens from discrimination from any ground whether it be religion, sex or race. The Equality Act 2010 under Part 2 Section 6 and Section 10 provides for disability and religion respectively which has been the claim of Ms Bell that she has been subjected to discrimination on religion and race and due to disability. Hence, the drafted report outlines the laws and authorities (precedents) and also the findings stating the application of identified laws on the facts of the case. Further, the report also highlights the research process used and the reason for using such a process. Finally, the report is concluded with concluding remarks and highlighting the sources that identified that the laws are up to date.
SUMMARY OF THE FACTS
As per the facts of the case Ms Bell is a single mother of four children that is three daughters and a son with a disability. Ms Bell has been identified as being on priority for housing listed under the Dreamland Borough Council. She contacted the council for a large property that she saw on the advertisement of the council on its website. But she was informed that she is not eligible to get the property as the property is only for the Orthodox Buddhist Community (OBC). Moreover, the council also informed Ms Bell that the property has been for such a community as the property is owned by the Association of Orthodox Buddhist Community (AOBC) who have a policy that houses shall be given to people of that community only. Hence, Ms Bell has challenged the policy for being discriminating on the ground of religion and race. Moreover, the Council has also informed Ms Bell that they cannot force AOBC to allocate houses to other communities. Despite that Ms Bell finds the policy to be discriminative. Hence, the report is being drafted highlighting the key legislations and the relevant case laws in this respect.
RELEVANT STATUTES
As per the facts of the case, the relevant statutes applied in this case is Section 158 of the Equality Act 2010. Though Equality Act 2010 under various provisions sets out that there shall be no discrimination on the ground of religion, race or ethnic origin, yet there are certain exceptions in the Act (Section 158) that state that charitable organizations can take actions keeping in view protected characteristics and religious observance. Moreover, section 193 of the Equality Act 2020 also provides for an exception where charitable organizations are allowed to preserve their housing policies to those who are of protected characteristics.[1]
Apart from the Equality Act 2010, Council Directive[2] is also seen to be applicable in this case as this directive was termed as the race directive where the court held that preserving property for allocation to a special community of protected characteristics shall not be discriminative as the allocation is for protecting religious observance and not discrimination on religion or ethnic group.[3]
RELEVANT CASE LAW
The relevant case law identified in this case is Z & Ors, R (On the Application Of) v Hackney London Borough Council & Anor[4] which was brought was applicant R and the case was filed against the London Borough of Hackney and Agudas Israel Housing Association (AIHA). As per the facts of the instant case, AIHA had a policy of allocation of houses only to the Jewish community and hence, applicant R and her three-year-old son filed the case against AIHA. Moreover, the applicant also claimed against the London Borough of Hackney as the nominations for the allocation of the property was done by the London Borough of Hackney and it also restricted its nomination to the Jewish community.[5]
In this case, the Divisional Court under Lindblom LJ and Sir Kenneth Parker stated that the selected community was suffering from a high level of poverty and deprivation. And the court also stated that it has been satisfied that there is no question of stating the allocation of property to be discriminative. The court stated that the Jewish community has been denied education and basic amenities and also, they have faced discrimination in employment opportunities. Hence, AIHA has provided homes to such communities where they can practice their religion and also avoid discrimination in letting. Hence, allocation of property to Jewish on priority cannot be said to be discriminative as this has been done keeping in mind religious observance and not discrimination. The court also called the allocation of property by AIHA to be proportional as it was done to avoid the disadvantage to these people.[6]
Hence, the above ruling reveals that allocation of property to a particular religion for their betterment is not discrimination to others rather, it is being done for the betterment of the community and to prevent disadvantages.
RESEARCH FINDINGS
As per the facts of the case, relevant statute and case law, the following analysis has been done:
The issue identified in the case is that whether Ms Bell shall be entitled to claim against OBC and AOBC as they have property allocated only to the Buddhist community and that Ms Bell has been denied allocation despite her need.
The rule identified in this case is the exception provided under the Equality Act 2010. As per the provisions of the Equality Act 2010, there shall be no discrimination done on any ground of religion, race, sex or ethnic group but at the same time, the Act also states certain exceptions which provide that actions can be taken if a group or community of persons are suffering from disadvantage or if they are connected to a specific characteristic. The provision under Section 158 of the Equality Act 2010 reads as follows:
“This exception shall be made applicable if a person has reasons to believe and he reasonable thinks that a particular community or group of people has been suffering disadvantages or the person who is under protected characteristics and in need that is different from the need of others.
Further, it has also been stated that any proportionate action can be taken to encourage and enable the people and community with protected characteristics to minimize their disadvantages and also meet their needs.”[7]
Hence, it has been analyzed that as per the exceptions, the OBC and the AOBC have been allocating the property which shall fall under non-discriminative action as the property has been allocated to a particular community to protect them from disadvantages. Moreover, the charitable organization also has an aim of protecting the community from suffering inequality and also to fulfilling their needs.
The above principle has been termed the Race Directive and it has been originated in the year 2020 from the appeal filed in the year 2019. The origin of this directive lies in the case of R (on the application of Z and Anor) (AP) v. Hackney London Borough Council and Anor[8]. The Supreme Court has dismissed this appeal where it was claimed that the laws for the benefit of a particular community are discriminatory. The court stated that anti-discriminatory laws do not apply to charities and related organizations as they work intending to provide betterment to a particular community which cannot be stated to be discrimination to others. Anti-discriminative laws have been provided under the Equality Act 2010 and the Council Directive 2000/43/EC of 29 June 2000 (the “Race Directive”). Thus, it can be stated that as per the decision of the Supreme Court in 2020, it has been decided that the policies of charitable organizations are not discriminating as they are framed with the aim and intention of lowering the sufferings of a particular community and meeting their needs, thus, it cannot be stated to be discriminating for others.[9]
On applying the above laws on the facts of this case, it can be stated that Ms Bell wants the allocation of large property to be done to her but the nomination for allocation is done of only the people of the Buddhist community. Hence, Ms Bell is not eligible of getting the property. Though she is in need as she is a single parent of four children but the policy requires the allocation to be done only to the people of the Buddhist community. She is entitled to get the properties not owned by AOBC, but for the properties owned by the charitable organization AOBC, she shall not be entitled as the property is reserved with an aim for the Buddhist people.
Applying the rule of the Supreme Court on the facts of this case, it can be stated that the policy of AOBC for allocation of property to the Buddhist community cannot be stated to be discriminatory as the allocation has been done to lower the sufferings of the disadvantaged people. Hence, as per the judgment of the Supreme Court, Ms Bell can claim allocation of other properties but she is not entitled to claim the allocation of property owned by AOBC.
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RESEARCH PROCESS
There are various tools and techniques used for research and the tool used for drafting this report is a case study.[10] The case study involves the detailed studying of a particular case which may include a person or a small group. In drafting this report the case that was studied deeply was R (on the application of Z and Anor) (AP) v. Hackney London Borough Council and Anor[11]. In this case, Hackney London Borough Council (first respondent) allocated the properties to Jewish people only and also nominated only that group for properties listed. The nominations done by the first respondent was for the allocation to AIHA (second respondent) that only considered nominations of Jewish people. The applicant was a mother of four children where she claimed property and stated that such policy of AIHA was discrimination on the ground of religion and ethnic group. To the claim of the applicant, the court stated that allocation of property to a particular group for its betterment and to minimize their sufferings shall not amount to discrimination. Rather, it shall fall within the exceptions provided under the Equality Act 2010. Hence, the tool of the case study used was most appropriate.[12]
Apart from tools, the research database used for this report was legislation.gov.uk. from where the provisions of the Equality Act 2010 has been studied and analyzed. Further, International Conference on Learning Representations (ICLR) has also been used for data as this is a full text of the United Kingdom cases from 1865. The above-referred case has been studied and analyzed from this text.
The tool of case study and ICLR has been the most useful source of research as these were the direct sources of law and case studies and hence, it is the most relevant source for reference. To check the relevancy of the law and to see whether the referred case law and legislation are up to date, I have referred to the official site of United Kingdom legislation and the legal document of all the case laws in the UK. ICLR provides for the year of the judgment in the citation and for the referred case it has been stated to be 2020. Hence, the preferred law and legislation are up to date.
CONCLUSION
Thus, to conclude it can be stated that Ms Bell has no claim in this case as she is not entitled to the property for the reason being the property is reserved for the Buddhist community. Further, the reservation cannot be stated to be discrimination for others as the reservation has been stated by the Supreme Court to be to reduce the disadvantages and sufferings of this particular community.
References
Busby N, Robison M and Weldon-Johns M, Equality Law Studying EU Law, 49
'Equality Act 2010' (gov.uk, 2021) <https://www.legislation.gov.uk/ukpga/2010/15/section/158> accessed 17 November 2021
Equality Act 2010, s 158, 193
Francis R, ‘Equality in theory and practice: A moral argument for ethical improvements’ (2020) Springer Nature
Gallagher T, ‘Education, equality and the economy’ (2019) Queens University, Retrieved October 1, 2019
Joshi H, ‘Tips and Tools: A Guide to Effective Case Writing’ (2019)
Schatzki TR, ‘Social change in a material world’ (2019) Routledge
Sigafoos J, ‘On charitable discrimination: positive action, proportionality and ‘bright lines’ (2021) Journal of Social Welfare and Family Law, 43(2), 208-211
Tranøy BS, Stamsø MA and Hjertaker, I, ‘Equality as a driver of inequality? Universalistic welfare, generalised creditworthiness and financialized housing markets’ West European Politics, 43(2), 390-411
[1] Nicole Busby, Muriel Robison and Michelle Weldon-Johns, Equality Law Studying EU Law, 49
[2] 2000/43/EC of 29 June 2000
[3] Tony Gallagher, ‘Education, equality and the economy’ (2019) Queens University, Retrieved October 1, 2019
[4] [2019] EWHC 139
[5] Bent SofusTranøy, Mary Ann Stamsø and Ingrid Hjertaker, ‘Equality as a driver of inequality? Universalistic welfare, generalised creditworthiness and financialized housing markets’ West European Politics, 43(2), 390-411
[6] Jennifer Sigafoos, ‘On charitable discrimination: positive action, proportionality and ‘bright lines’ (2021) Journal of Social Welfare and Family Law, 43(2), 208-211
