GH, R (on the application of) v The Mayor of London

A public authority deciding how to allocate finite funds in an economic and social policy scheme may use a reasonable proxy for identifying those in need. The proxy need not perfectly replicate the target population. Where the scheme supplements a statutory scheme confined to state-funded schools, limiting the additional scheme in the same way may fall within the range of reasonable decisions.

The duty of inquiry requires reasonable steps to obtain information sufficient for a rational decision. The court will not intervene merely because further inquiries or consultation might have been desirable. The Public Sector Equality Duty requires substantive, rigorous and open-minded consideration, but concerns process rather than outcome and does not require forensic analysis of every item of evidence. Indirect discrimination may be justified by objective factors and proportionate means, particularly in social and economic policy.

The claimants, Charedi children attending independent schools, sought permission to challenge the Mayor of London’s decision to continue the Universal Free School Meals scheme for 2024–2025 while limiting it to state-funded primary schools. They argued that the decision was irrational, failed to satisfy the duty of inquiry and the Public Sector Equality Duty, and indirectly discriminated on grounds of religion under Article 14 of the ECHR and section 19 of the Equality Act 2010.

The challenge followed an earlier decision to introduce the scheme on the same basis, together with equality assessments, analysis of the independent-school sector and representations from the Charedi community. The central issues were whether the Mayor had sufficient information, whether further consultation or inquiry was required, whether due regard had been paid to equality duties, and whether the exclusion of independent schools was unjustified indirect discrimination.

1. Permission refused. None of the proposed grounds had a realistic prospect of success.
2. The Mayor’s duty of inquiry required him to take reasonable steps to inform himself so as to reach a rational conclusion. The manner and intensity of the inquiry were for him to decide. Applying R (Balajirari) v SSHD, the court would intervene only if no reasonable decision-maker could have been satisfied that the information obtained was sufficient. The existing equality assessments, sector analysis, information about the Charedi community, funding constraints, administrative feasibility and alternative support provided a sufficient basis.
3. The decision to use attendance at state-funded schools as a proxy for identifying less affluent families was rational. A proxy could not perfectly reproduce the target population. Parliament had itself confined the statutory free-school-meals scheme to state-funded schools, and the Mayor was entitled to take that policy distinction into account when supplementing the statutory scheme. The exclusion of independent schools was within the range of reasonable decisions available in a high-level allocation of public funds.
4. Any consultation obligation arose from the duty to inform the decision-maker, rather than from procedural fairness. The Mayor had considered the Charedi representations, including the proposed £5,000 fee threshold. It was not arguable that no rational decision-maker could have taken the decision without further consultation.
5. The Public Sector Equality Duty under Equality Act 2010, s 149, required substantive, rigorous and open-minded consideration. Applying Bracking v SSWP and the related authorities, the duty concerned process, not outcome; the court should adopt a realistic and proportionate approach and avoid micro-management. The available assessments and analysis addressed religion, poverty, food insecurity and the Charedi community. A new equality assessment was not required.
6. Even assuming indirect discrimination under Article 14 or s 19, the scheme pursued the legitimate aim of addressing the cost-of-living crisis through finite funds. Limiting eligibility to state-funded schools reflected objective factors unrelated to religion and was capable of objective and reasonable justification. The claimants therefore lacked a realistic prospect of establishing unlawful discrimination.

• High Court (Administrative Court): Permission was refused on paper by Eyre J on 26 April 2024. Lang J expedited the oral renewal hearing on 2 May 2024. Mr Justice MacDonald refused permission following the oral hearing.