CKT & Anor, R (on the application of) v Twyford Church of England Academies Trust & Anor

Faith-based admission criteria may be indirectly discriminatory in relation to race even though legislation permits faith-based oversubscription criteria. The religious-character exception in paragraph 5 of Schedule 11 to the Equality Act 2010 disapplies the prohibition only so far as it relates to religion or belief. It does not authorise discrimination relating to race.

Indirect discrimination must be assessed by the four-stage proportionality test in Bank Mellat. Preserving a school’s religious character and ethos is a legitimate aim, and giving priority to worshippers of the relevant denomination may be rationally connected with that aim. The court should exercise caution before substituting its judgment for that of those responsible for a religious school. A public sector equality duty may be satisfied by consideration of admission arrangements as a whole.

Two joined judicial review claims concerned a Church of England academy’s award of an additional point to applicants whose family worshipped at a Church of England church or a church in communion with it. The first claim challenged the Trust’s admission arrangements, the refusal to admit DGT and the decision of the appeal panel. It also alleged breach of the public sector equality duty. The second challenged the Office of the Schools Adjudicator’s rejection of an objection to materially identical arrangements.

The claimants, who worshipped at an Eritrean Orthodox Church, argued that the criterion indirectly discriminated against racial groups associated with non-Church of England Christian churches. The issues included the scope of the religious-school exception, the availability of a claim against the Trust alongside review of the OSA decision, indirect discrimination, proportionality and the public sector equality duty.

1. Scope of the religious-school exception. Paragraph 5 of Schedule 11 to the Equality Act 2010 disapplies section 85(1) only so far as it relates to religion or belief. It does not protect conduct which is indirectly discriminatory in relation to race. The words identify the protected characteristic to which the disapplied prohibition relates, rather than describing any admission arrangement connected in some way with religion.
2. Claims against the Trust and OSA. The availability of an objection to the OSA did not justify dismissing the claim against the Trust. The statutory scheme did not reserve all such challenges to the OSA, and the PSED ground was not a discrete ground in the OSA claim. The Trust claim was therefore procedurally available.
3. Indirect discrimination. The criterion was a provision, criterion or practice. It gave those eligible for the extra point a significant advantage and, on the balance of probabilities, created a significant difference between the racial or ethnic profile of predominantly Church of England worshippers and other Christians eligible for 20 points. The criterion was therefore indirectly discriminatory in relation to race unless justified.
4. Proportionality. Applying the four questions in Bank Mellat, preserving the Anglican character and ethos of the school was a legitimate aim. The criterion was rationally connected with that aim. The court should be cautious before substituting its own views for the genuine views of those responsible for a religious school, and the question was whether the limitation was reasonable having regard to its intrusiveness and available alternatives. Parliament’s decision to permit faith-based criteria was an important contextual consideration. The OSA’s reasoning that no less intrusive measure would achieve the objective was persuasive. The racial impact was incidental, nuanced and difficult to quantify, and did not outweigh the importance of the objective.
5. Public sector equality duty. The Trust had due regard to the relevant equality objectives when its admission arrangements were considered as a whole. The duty did not require a separate express assessment of every detailed feature of the criterion. The Trust knew the composition of its diverse community, maintained equality policies and deliberately used different arrangements across its schools.
6. Alternative relief point and disposal. Even if there had been a breach of the PSED, it was highly likely that the Trust would have adopted the same criterion. Both judicial review claims were dismissed.

This was a first-instance decision of the Administrative Court on two joined judicial review claims. Permission was granted and the claims were joined by Calver J on 21 March 2025.