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

The claimant sought permission for judicial review of the Mayor of London’s decision (MD3224) to continue the Universal Free School Meals (UFSM) scheme for 2024–25 but to limit it to state-funded primary schools. The claim advanced Wednesbury/"Tameside" style challenges to the adequacy of inquiry and consultation, asserted irrationality in the decision to draw a categorical line between state-funded and independent schools, and alleged breaches of the Public Sector Equality Duty (s.149 Equality Act 2010) and indirect discrimination (Article 14 ECHR and s.19 Equality Act 2010) arising from the impact on Charedi children who mainly attend independent schools.

The court refused permission. Key legal principles applied were the limited scope of judicial review of high-level resource and social policy decisions, the Tameside duty to make reasonable inquiries (the decision-maker determines manner and intensity), the PSED requirement to have "due regard" in substance and proportionately, and the test for indirect discrimination requiring a prima facie disparate impact followed by objective and reasonable justification. The court held that the Mayor had available and had considered relevant material (interim EqIA, a November 2023 Integrated Impact Assessment, and a "Supplementary analysis on London School sector", and prior Mayoral Decision MD3146), that the information was largely static and sufficient for a policy decision, and that confining UFSM to state-funded schools lay within the range of reasonable responses given funding limits, administrative and implementation difficulties, and the statutory context. The court concluded the PSED had been addressed and any alleged indirect discrimination had an objective and reasonable justification in terms of legitimate aims and proportionate means (including the wide margin in social and economic policy). The application for permission to apply for judicial review was refused.

Background and parties: The claimants are Charedi Orthodox Jewish children (represented by their father/litigation friend), principally from the Stamford Hill Chasidic community, who attend Charedi independent schools. The defendant is the Mayor of London acting for the Greater London Authority. The Mayor introduced a time-limited Universal Free School Meals (UFSM) scheme in 2023 limited to state-funded primary schools and later decided (MD3224) to continue the scheme for 2024–25 on the same basis. The claimants argued the scheme should be extended to some independent schools which they said contain many low-income Charedi children who have no realistic choice but to attend independent schools for religious reasons.

Procedural posture: Permission to apply for judicial review was refused on paper by Eyre J (26 April 2024). Lang J granted expedition of the oral renewal (2 May 2024). An oral renewal hearing took place and this approved judgment was handed down on 5 June 2024.

Relief sought: Permission to judicially review the Mayor’s decision of 18 January 2024 and associated Equalities Impact Assessment material, with a view to extending the UFSM scheme (or otherwise mandating consideration of targeted extension) to independent Charedi schools or some independent schools.

Issues framed by the court:

• Ground 1a: whether the Mayor breached his duty of inquiry (Tameside) and failed to acquire relevant information or consult adequately, especially about feasibility of targeted extension (e.g. a proposed £5,000-fee threshold for qualifying independent schools).
• Ground 1b: whether the decision was irrational or outside the range of reasonable responses to limit UFSM to state-funded schools.
• Ground 2: whether the Mayor breached the Public Sector Equality Duty (s.149 Equality Act 2010) by failing to give "due regard" and to make adequate inquiry into impacts on the Charedi community.
• Grounds 3 and 4: whether the decision amounted to unlawful indirect discrimination under Article 14 ECHR and s.19 Equality Act 2010.

Court’s reasoning and findings: The court applied established principles: the decision was a high-level allocation of limited public funds in social and economic policy attracting a wide margin of appreciation; the Tameside duty requires reasonable, not exhaustive, inquiry and the decision-maker chooses manner and intensity of enquiries; the PSED requires a proportionate, substantive and open-minded process rather than forensic completeness; and indirect discrimination requires proof of disparate impact and, if established, an objective and reasonable justification.

The Mayor had access to an interim Equality Impact Assessment and a "Supplementary analysis on London School sector" prepared in advance of the 2023 scheme and to an Integrated Impact Assessment produced in November 2023 that informed MD3224. Those materials addressed the characteristics of Charedi communities, household size, Kosher food costs, likely poverty and food insecurity, lack of centralised data on independent school fees and meal provision, and practical implementation difficulties and costs of extending UFSM to independent schools. The Mayor also considered representations from the Charedi community including the proposed fee-threshold approach but concluded it was not operationally viable. The court found (i) the material was sufficiently relevant and largely static so further inquiry was not obviously required, (ii) the decision to use attendance at state-funded schools as a practicable proxy for targeting limited funds was within the range of reasonable responses, (iii) the PSED had been discharged in substance and with proportionality, and (iv) any prima facie indirect discriminatory effect was objectively and reasonably justified by legitimate aims (addressing the cost-of-living crisis, efficient and practicable distribution of finite funds, and administrative deliverability), such that the claim was not arguable.

Subsidiary findings: the court recorded other mitigations including a December 2023 grant approved by the Mayor (£450,000 to Hackney) targeted to alleviate food insecurity in the Charedi community. The court also noted the statutory context where Parliament’s statutory free school meal provision is limited to state-funded schools, which informed the Mayor’s approach.

Outcome: Permission to apply for judicial review was refused; the application for expedition of a substantive hearing consequently did not proceed.

Permission to apply for judicial review is refused. The court held that the Mayor had made reasonable and proportionate inquiries (Tameside duty) and had before him an interim Equality Impact Assessment, a supplementary analysis of the London independent school sector, and an Integrated Impact Assessment, such that further inquiry or consultation was not shown to be required. The decision to confine the UFSM scheme to state-funded primary schools was within the range of reasonable responses in light of finite funding, administrative and implementation burdens, and the statutory framework; the Public Sector Equality Duty had been addressed with substance and proportionality; and any alleged indirect discrimination lacked a realistic prospect of success because the limitation was objectively and reasonably justified as proportionate to legitimate aims in the social and economic policy context.

Permission on paper was refused by Eyre J on 26 April 2024. Lang J granted expedition of the oral renewal hearing on 2 May 2024. The oral renewal hearing was listed and heard (hearing date recorded as 23 May 2024) and this approved judgment was handed down remotely on 5 June 2024.