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

The court considered whether an independent fostering agency (Cornerstone) lawfully limited recruitment of foster carers to evangelical heterosexual Christians. The court held that Cornerstone provides services within the meaning of s 29 Equality Act 2010 and performs public functions when placing looked-after children, so its recruitment decisions are capable of engaging the Equality Act 2010 and the Human Rights Act 1998. The agency’s exclusion of gay men and lesbians amounted to direct and, at minimum, indirect discrimination on grounds of sexual orientation contrary to s 29 read with ss 13 and/or 19 EA 2010, and was not justified as a proportionate means of achieving the asserted aims.

The court further concluded that Cornerstone’s restriction to evangelical Christians is permitted by the religion-or-belief exception in paragraph 2 of Schedule 23 EA 2010 except where the activity is carried out on behalf of a public authority pursuant to contract (paragraph 2(10) Sch 23), and that paragraph 2(10) applied to Cornerstone’s fostering activities carried out for local authorities under contract. On Convention rights, Cornerstone was a hybrid public authority for HRA s 6 purposes; the court held that the policy excluding non-evangelical Christians did not, on the facts, amount to a Convention-protected manifestation of religion in a way that was impaired by Ofsted’s report, but the exclusion of gay and lesbian applicants engaged Article 14 read with Article 8 and was not objectively justified.

This claim for judicial review challenged an Ofsted inspection report concluding that Cornerstone’s foster carer recruitment policy unlawfully discriminated in breach of the Equality Act 2010 and the Convention as given effect by the Human Rights Act 1998. Cornerstone is a charitable independent fostering agency founded on evangelical Christian principles which, in practice, recruited only evangelical married heterosexual couples and required adherence to a Statement of Beliefs and a Code of Practice that proscribed 'homosexual behaviour'.

Nature of the claim / relief sought

• Declaration that Ofsted’s finding of contravention of the EA 2010 and/or HRA 1998 was unfounded.
• Quashing of the statutory requirements in the Ofsted Report.
• Damages under s 8 HRA 1998 and costs.

Issues for decision

1. Whether Cornerstone’s recruitment policy breached the EA 2010 in respect of sexual orientation (ss 13, 19, 29 and the exceptions in Sch 23 and s 193).
2. Whether Cornerstone’s practices were incompatible with Convention rights under the HRA 1998 (s 6), in particular Article 14 read with Article 8, and whether Cornerstone was a public authority for HRA purposes.
3. Whether Ofsted’s Report infringed Cornerstone’s Article 9, 10 and 11 rights.
4. Whether Ofsted properly followed its Social Care Common Inspection Framework (SCCIF).

Court’s reasoning and findings

• Statutory and factual background: local authorities have duties under the Children Act 1989 to provide placements for looked-after children; independent fostering agencies are regulated by the Care Standards Act 2000 and the Fostering Regulations 2011 and routinely operate under contracts with local authorities.
• S29 EA 2010: the court concluded Cornerstone provides services to sections of the public (prospective carers and children) and therefore falls within s 29; alternatively its activities amounted to the exercise of public functions for the purposes of s 29(6).
• Discrimination: Cornerstone’s Code of Practice (clause 10) and practice meant prospective gay and lesbian applicants would be treated less favourably than heterosexual applicants. That was direct discrimination (and at minimum indirect discrimination) on the protected ground of sexual orientation and therefore unlawful unless an exception applied or the conduct was objectively justified.
• Justification / proportionality: particularly weighty and convincing reasons are required to justify discrimination on grounds of sexual orientation. Cornerstone’s asserted aims (supporting an evangelical community of carers; increasing the pool of evangelical carers; securing pastoral/religious support to help placements) were held not to be sufficiently connected to, or proportionately achieved by, an exclusion of gay and lesbian evangelical Christians. Less intrusive means were available and there was insufficient evidence to show the exclusion materially benefited children or was necessary to secure Cornerstone’s aims.
• Schedule 23 EA 2010 and s 193: paragraph 2(3) Sch 23 allows religious organisations to restrict benefits to persons who share the protected characteristic of religion or belief; however paragraph 2(10) disapplies that protection for conduct done on behalf of a public authority under contract. The court found Cornerstone discharges functions 'on behalf of' local authorities under contract and so paragraph 2(10) applied in relation to sexual orientation discrimination; s 193 (the charity exception) did not avail Cornerstone in respect of sexual orientation because objective justification was not made out.
• HRA 1998 and Convention: Cornerstone was a hybrid public authority for HRA s 6 purposes in respect of fostering placements. The court found no infringement of Article 9 for the religious-only recruitment requirement on the facts (or, in any event, any interference would be justified), but the exclusion of gay and lesbian applicants engaged Article 14 read with Article 8 and was not justified.
• SCCIF: Ofsted was entitled to depart from the guidance in SCCIF on the facts and to address non-discrimination although there was no identified direct impact on children in the inspected cases.

Result The court rejected Cornerstone’s principal challenges; Ofsted’s conclusions that the policy unlawfully discriminated on grounds of sexual orientation were upheld, whilst Cornerstone’s religious-only recruitment was recognised as having protection under the EA 2010 except to the extent paragraph 2(10) Sch 23 applied to its public-function activities.

The claimant's judicial review challenge is dismissed. The court held that Cornerstone’s practice of excluding gay and lesbian prospective carers unlawfully discriminated on grounds of sexual orientation contrary to the Equality Act 2010 (ss 13/19/29) and Article 14 read with Article 8 as given effect by s 6 HRA 1998; the agency provides services and performs public functions when placing looked-after children, and its conduct in that regard falls within the disapplication in Sch 23(2)(10) so the religion-based exemption did not shield sexual-orientation discrimination. By contrast, restricting provision to evangelical Christians in the purely religious dimension fell within the religion-or-belief exception in Schedule 23 as enacted by Parliament. Ofsted’s Report did not breach Cornerstone’s Convention rights and was not unlawful under SCCIF.