CKS (a child) & Ors v Secretary of State for Education

A policy which provides free school meals only within the state-funded education system does not, merely by excluding private-school pupils, engage the Thlimmenos principle. The principle concerns failure to make an exception to a rule applied to the claimant; it does not generally require the creation of a new scheme for persons outside the scheme’s scope.

Alternatively, exclusion of Charedi pupils from universal infant free school meals was justified under the four-stage proportionality test. The policy’s educational aims, administrative structure, cost consequences and the need for a workable boundary supplied very weighty reasons. The public sector equality duty was discharged by considering the specific request and equality implications before maintaining the settled policy.

The claimants were Charedi Jewish children attending private schools. They challenged the Secretary of State’s refusal in 2025 to extend the Universal Infant Free School Meals policy to Charedi pupils attending private schools.

They alleged discrimination contrary to article 14 of the Convention, read with articles 8, 9 and A2P1; breach of the public sector equality duty under section 149 of the Equality Act 2010; and unlawfulness or irrationality in taking account of the view that Charedi parents had a choice whether to use private schools.

The central issues were whether the Thlimmenos principle applied to persons outside the scope of the policy, whether any discriminatory treatment was justified, and whether the equality and rationality duties had been met.

1. Claim dismissed. The application for judicial review was dismissed on all three grounds.
2. The Universal Infant Free School Meals policy was part of the package of state-funded education. It was designed to pursue educational, social, health and cost-of-living objectives within schools for which the state had funding and regulatory responsibility. It was not merely a welfare benefit delivered through schools.
3. The Thlimmenos principle was not engaged. The claimants and other private-school pupils were outside a scheme applying to state-funded schools. They were not persons subject to a general rule who sought an exception. Extending the policy to them would require a different scope, administration and regulatory framework, amounting in substance to a new scheme.
4. Even if article 14 was engaged, the refusal was justified. Applying the four-stage Bank Mellat test, the policy pursued sufficiently important objectives and was rationally connected to them. Extending it to private schools would compromise those objectives through redesign, administrative and monitoring difficulties, additional cost, reduced funding across schools and difficult boundary disputes. The distinction between state-funded and private schools supplied a workable boundary.
5. Although discrimination based on religion or race ordinarily requires very weighty reasons, the assessment remained context-specific. The Secretary of State was entitled to consider parental choice, the pluralistic character of state education, the availability of other assistance and the consequences for other communities. The court did not need to decide conclusively whether the complaint fell within the ambit of article 9.
6. The public sector equality duty was discharged. The Ministerial Submission specifically addressed the requested policy change and equality issues, and Annex B expressly considered the duty. A formal annual equality impact assessment was not required. Alternatively, section 31(2A) of the Senior Courts Act 1981 would have required refusal of relief because the same outcome was highly likely.
7. The Secretary of State was entitled to regard Charedi parents as exercising a choice and to take that matter into account. The decision was not irrational.