High Court rejects judicial review challenge over faith-based oversubscription criterion within admission arrangements of school

In CKT vs OSA [2025] EWHC 2396 (Admin), Mr Justice Bourne reached his conclusion based on “the strength of the Trust’s commitment to the Anglican ethos”, “the fact that for faith-based criteria to have some disparate racial impact is unsurprising” and other factors which he observed to “mitigate the impact”.

In the case, both claims concerned the question of whether a faith-based oversubscription criterion within the admission arrangements of Twyford Church of England High School was “indirectly discriminatory” in relation to the protected characteristic of race, contrary to the prohibition on discrimination in section 85(1)(a) and (c) of the Equality Act 2010 (“the EA”).

The first claim was directed against Twyford Church of England Academies Trust, which administers the school, and its Admissions Appeal Panel, and arose from a decision not to admit the claimant’s eldest son, “DGT”, under the 2024/2025 admission arrangements.

In addition to the indirect race discrimination ground, the claim against the Trust also alleged a continuing breach of the public sector equality duty (“PSED”) under section 149 of the EA by the Trust in adopting, maintaining and applying the impugned criterion.

The second claim (“the OSA claim”) concerned a decision of the Office of the Schools Adjudicator in November 2024 to reject an objection by the claimant (CKT) to the criterion in the 2025/2026 admission arrangements.

The judge said: “That claim too is brought on the ground that the criterion is unlawfully indirectly discriminatory in relation to the protected characteristic of race and that the OSA should have made a finding to that effect.”

CKT lives with her three children. DGT is 12 and the other children are 10 and 5.

CKT is originally from Eritrea and her first language is Tigrinya. CKT and DGT attend an Eritrean Orthodox Church where services are conducted in Tigrinya and the linked language of Ge’ez. The great majority of members of their church are black people of non-English national and ethnic origin. 

The Trust is a multi-academy trust which operates four schools in the area, of which Twyford is one. All four schools are over-subscribed.

At Twyford there are 190 places for entry into Year 7. When there are more applicants than the number of places available, 150 places are allocated as Christian places (“foundation places”), 21 are designated as World Faith places and 19 are designated as Specialist Music Scholar places.

“World faith” is defined as “major non-Christian world faith”, meaning that applicants must be Muslim, Hindu, Sikh, Buddhist or Jewish. Points are awarded for frequency and length of attendance by the child and his or her family at a relevant place of worship.

When allocating the foundation places, after admitting looked after children and those with an education, health and care plan, the admission authority applies a points system.

Up to 20 points are awarded for voluntary attendance by the child and his or her parent/carer at services of the CofE or churches in communion with the CofE, or Christian Churches affiliated to Churches Together in Britain and Ireland or the Evangelical Alliance for a period of up to 5 years.

The judge said: “The criterion under challenge in the present case involves the award of an additional one point (the “CofE Extra Point” or the “Extra Point”) to certain applicants:

“Church of England/Anglican Point (or Churches in Communion therewith) One point is awarded to applicants whose family’s main place of worship is at a Church of England church or Churches in Communion with the Church of England. Various pieces of legislation make reference to ‘Churches in Communion with the Church of England’. This term may be taken to include the following Churches, listed in Canon C8 …”.

The judge added: “The effect of these criteria is that a family which, like the Claimants, does not worship at a CofE Church or a church in communion with the CofE cannot obtain more than 20 points out of the maximum 21.”

In the case, the local Diocesan Board of Education, which has a statutory consultative role in Church of England schools’ admission criteria, was joined as an interested party.

The Secretary of State for Education also applied to intervene in both claims, and by order of Bennathan J on 30 May 2025 was made an Interested Party and permitted to make written and oral submissions.

By a letter dated 1 March 2024, the Trust communicated its decision not to offer DGT a place at Twyford. This was accompanied by “appeal information” showing how the places had been allocated.

At that time, DGT was also not offered a place at two other faith schools on grounds of distance from those schools. He was instead offered a place at a non-faith school.

CKT exercised her right of appeal to the Twyford Admissions Appeals Panel. Her appeal was rejected in May 2024, but no reasons were given for rejecting her discrimination complaint.

Outlining the positions of the parties in the case, the judge noted that the Trust and OSA, supported by the Diocese, argued that faith based criteria, which are recognised by the statutory regime as “entirely lawful”, often have the effect of discriminating indirectly against people of different nationalities and races, because adherents of different religions and denominations normally have a different racial profile from the general local population near a school. 

The Trust and OSA pointed to the school’s particularly strong Church of England ethos, and argued that the Extra Point was a “proportionate way” of supporting that ethos.

Discussing the case, Mr Justice Bourne said: “It is clear that those who are able to earn the CofE Extra Point have a significant advantage over those who cannot. However, the question of whether that means that persons of non-white ethnicity or colour and/or non-English national or ethnic origin are at a particular disadvantage when compared with persons of white ethnicity or colour and/or English national or ethnic origin is less straightforward.

“One difficulty is that the Trust does not collect information about the race or ethnicity of applicants for places or any sub-group of applicants.

“[…] A second difficulty is that of deciding which groups should be compared. Should the comparison be between all successful and all unsuccessful candidates? Or should it be confined to those who score 20 points, comparing those who respectively do and do not earn the Extra Point?”

Based on the limited information available, the judge found “on the balance of probabilities” that there was a “significant difference” between the racial or ethnic profile of the (predominantly) CofE worshippers who could earn the Extra Point, and other Christians who could earn 20 points but who could not earn the Extra Point.

Turning to justification, and the Public Sector Equality Duty (PSED) argument, the judge said:

“Section 149 of the EA contains the public sector equality duty (“PSED”) and provides so far as material: 

”(1) A public authority must, in the exercise of its functions, have due regard to the need to—  (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;  (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it. (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

…

…

(7) The relevant protected characteristics [include]- 

• • race;…
  • religion or belief;”

He noted: “When the Trust decided to have faith-based oversubscription criteria at Twyford, it was obvious that these would have an impact on sections of the diverse community which the school serves. The use of any faith-based criteria would disadvantage those who could not satisfy them.

“And, the award of the Extra Point would be to the advantage of Anglicans and to the disadvantage of all other denominations. In recent years it will have been obvious to the Trust that few if any of those with only 20 points would be offered places.”

He continued: “Moreover, I am sure that the Trust at all times was aware of the London Diocesan Board for Schools (LDBS) guidance referring to the original purpose of Church schools having been “to serve the children of the parish” and, for that reason, recommending an equal distribution of foundation places and open places.

“I am sure that the Trust knew that it was departing from that guidance at Twyford and that this would have certain obvious effects on the community. In light of the evidence of the Trust deciding to take that step at Twyford and not at its other schools, I am satisfied that it has had due regard to the objectives relating to equality of opportunity and good relations so far as religion and belief are concerned.”

The judge observed given that Parliament permits faith schools to have faith-based oversubscription criteria, so that (for example) a school of one Christian denomination can, in principle, favour the adherents of that denomination, “due regard” therefore does not require much beyond “an awareness” of the impact on those of a different, or no, religion or belief.

He said: “Bearing in mind the inherent likelihood that faith based oversubscription criteria permitted by Parliament will have some disparate impact on different racial groups and the difficulty of measuring what may be a relatively limited impact in this case, I conclude that the Trust did not fail to comply with section 149 in respect of its admission arrangements.”

Concluding the case, Mr Justice Bourne said: “None of the judicial review grounds against either the Trust or the OSA succeed and so both claims will be dismissed. I have therefore not addressed any of the further arguments relating to the grant or refusal of relief.”

Lottie Winson