Cornerstone (North East) Adoption And Fostering Service Ltd, R (On the Application Of) v The Office for Standards In Education, Children's Services And Skills

An independent fostering agency providing services on behalf of local authorities pursuant to contract is subject to the Equality Act 2010 in its recruitment of foster carers. A policy excluding gay men and lesbians is direct discrimination, or at least indirect discrimination, on grounds of sexual orientation.

The religious-organisation exception in paragraph 2 of Schedule 23 does not apply where the organisation acts on behalf of a public authority under contract. Religious belief may justify restricting recruitment to evangelical Christians, but it does not justify excluding carers because of sexual orientation. Such an agency is also a hybrid public authority for the purposes of the Human Rights Act 1998.

Cornerstone, a faith-based independent fostering agency, challenged an Ofsted inspection report requiring it to change its policy of recruiting only evangelical Christian carers who refrained from homosexual behaviour. Ofsted concluded that the policy breached the Equality Act 2010 and the Human Rights Act 1998.

The claim raised issues concerning the application of the Equality Act 2010 to fostering agencies, the religious-organisation exception in Schedule 23, the charitable exception in section 193, Cornerstone’s status under section 6 of the Human Rights Act 1998, the compatibility of Ofsted’s report with Articles 8 to 11 and 14 of the Convention, and compliance with the Social Care Common Inspection Framework.

1. Equality Act 2010. Cornerstone provided services to prospective carers, children and local authorities. A prospective carer seeking training, assessment and approval was a person requiring a service within section 31(6). Alternatively, Cornerstone exercised a public function under section 29(6).

2. The policy excluding gay men and lesbians was direct discrimination under section 13. The reference to refraining from homosexual behaviour did not alter its practical effect. At minimum, it was indirect discrimination under section 19.

3. The policy was not a proportionate means of achieving a legitimate aim. Applying the four-stage proportionality test in Bank Mellat v HM Treasury (No 2) [2014] AC 700, Cornerstone had not shown a sufficient rational connection between exclusion and its aims, or that a less restrictive non-discriminatory policy was unavailable. Particularly weighty and convincing reasons were required for discrimination based on sexual orientation.

4. Paragraph 2(10) of Schedule 23 applied. Cornerstone discharged functions of local authorities in connection with placing children with foster parents and did so under contractual arrangements. The religious-organisation exception in paragraph 2(3) was therefore unavailable for sexual-orientation discrimination. Section 193 did not assist because the policy was not proportionate.

5. Cornerstone was a hybrid public authority under section 6(3)(b) of the Human Rights Act 1998. Its fostering functions were delegated public functions, and recruitment was a necessary gateway to the public function of placing children. The policy therefore engaged Article 14 read with Article 8. Religious-belief discrimination was objectively justified by Parliament’s carefully framed statutory exception, but sexual-orientation discrimination was not.

6. Ofsted’s report did not unlawfully interfere with Cornerstone’s Articles 9 to 11 rights. The requirement to recruit evangelical Christians was not a sufficiently intimate manifestation of religion. In any event, any interference concerning sexual orientation was proportionate to protecting the rights of gay men and lesbians.

7. Ofsted was entitled to impose the requirement despite the absence of direct impact on children in the inspected cases. Its view that non-discrimination in recruitment was an important regulatory principle provided a sufficient basis for departing from the relevant guidance. The claim therefore failed, subject to the report’s incorrect conclusions concerning the Human Rights Act and religious discrimination.

This was a first-instance judicial review claim in the High Court (Administrative Court). Permission was granted by Jefford J on 9 October 2019.