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

Mr Justice Bourne: Introduction

1. These are two joined claims for judicial review for which permission was granted by Calver J on 21 March 2025.

2. Both claims concern the question of whether a faith-based oversubscription criterion within the admission arrangements of Twyford Church of England High School (“the school” or “Twyford”) is 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”).

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

4. In addition to the indirect race discrimination ground, the claim against the Trust also alleges 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.

5. The second claim (“the OSA claim”) concerns the decision of the Office of the Schools Adjudicator (“OSA”) on 18 November 2024 to reject an objection by CKT to the same criterion in the 2025/2026 admission arrangements. 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.

6. The Secretary of State for Education (“the Secretary of State”) 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. The facts

7. The basic facts are helpfully set out in the skeleton argument of the Claimants’ counsel, Raj Desai, to which I am largely indebted for my summary below.

8. CKT lives with her three children in Ealing. DGT is now 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.

9. The Trust is a multi-academy trust which operates four schools in the area, of which Twyford is one. The Trust’s constitutional documents and policies, including a common “Spiritual, Moral, Social and Cultural Life” policy, apply to the running of all of its faith-designated schools and outline a shared Christian vision and ethos for them.

10. For Twyford’s history I am indebted to the witness statement of the Trust’s CEO, Dame Alice Hudson. The school premises originally belonged to the London Borough of Ealing. In 1981 they were transferred to the London Diocesan Board for Schools and the school became a voluntary aided maintained school, designated as having religious character, under the name of Twyford Church of England High School. It became an academy on 1 October 2011 and continues to have a designation as a Church of England (“CofE”) school which is reflected in a funding agreement between the Trust and the Secretary of State which is part of the academy arrangements.

11. Two of the Trust’s other schools, William Perkin CofE High School (“William Perkin”) and Ada Lovelace Church of England High School (“Ada Lovelace”) were opened in 2013 and 2018 respectively in response to community demand for school places. They are CofE designated but, unlike Twyford, do not have faith-based oversubscription criteria.

12. The Trust’s fourth school, Ealing Fields High School, opened as a free school (a type of academy) in 2016 and joined the Trust in 2017. It will have a CofE religious designation from September 2025 but will not have faith-based oversubscription criteria.

13. All four schools are over-subscribed.

14. The relevant parts of Twyford’s Admissions Policy were materially identical for 2024-2025 (the year of DGT’s application) and 2025-2026 (when the admission arrangements were considered by the OSA), and they remain in place for the 2026-2027 school year in which CKT wishes to apply for a place for her middle child.

15. 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.

16. “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.

17. 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.

18. 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 latter category includes a broad range of Christian churches such as the Roman Catholic Church, the Methodist Church and various national orthodox churches.

19. 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 …”.

20. According to a finding of the OSA which has not been contested before me: “This is followed by a link to a document with a list of churches ‘in communion with the Church of England’. This list includes churches in Africa, Asia and the Americas. These churches are part of the Anglican Communion. They do not include Roman Catholic or Orthodox Churches. The Eritrean Orthodox Church is not included.”

21. 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.

22. In three of the last five years (2024, 2021 and 2020), no children with only 20 points succeeded in gaining a Foundation place. In 2022 and 2023, respectively 4.5% and 7.5% of on-time applicants with 20 points obtained admission, compared with 100% of those with 21 points.

23. CKT and DGT chose Twyford as their first preference because CKT wishes her children to attend a school with Christian values and a strong academic reputation and the school is close to their home. Their fallback choices were Ada Lovelace and William Perkin.

24. 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. After provision for looked after children, out of 168 applicants scoring 21 points, 138 were successful. Under tie-breaker arrangements giving priority to siblings of those at the school and to applicants living in the Deanery areas of Ealing, Brent & Harrow and Hillingdon, the other 30 applicants with 21 points were unsuccessful on geographical grounds. There were 171 applicants for foundation places with 20 points, including DGT, and all were unsuccessful.

25. At that time DGT was also not offered a place at Ada Lovelace or William Perkin on grounds of distance from those schools. He was instead offered a place at Ark Soane Academy, a non-faith school.

26. CKT exercised her right of appeal to the Twyford Admissions Appeals Panel. The appeal included the contention that the impugned criterion infringed paragraph 1.8 of the Admissions Code (to which I come below) because it was unlawfully discriminatory. Her appeal was rejected by a decision of 24 May 2024, applying the impugned criterion. No reasons were given for rejecting her discrimination complaint.

27. I understand the Trust claim to raise the same issues against the original decision and the appeal decision and not as making distinct criticisms of one rather than the other.

28. On 29 April 2024 CKT raised an objection with the OSA. Having received submissions from CKT, the Trust and the London Diocesan Board for Schools (“LDBS”), the OSA rejected the objection in a determination of 18 November 2024. The OSA considered that the impugned criterion was a proportionate means of achieving a legitimate aim. That determination is the subject of the OSA claim.

29. By way of postscript, DKT was offered and accepted a place at Ada Lovelace during the Autumn term. The late move occasioned some inconvenience but DKT is now happy there.

30. CKT wishes her other children to attend Twyford and would have to apply for the middle child by 31 October 2025 for the 2026-27 school year. Legal framework Faith schools

31. Section 20 of the School Standards and Framework Act 1998 (“SSFA”) divided schools maintained by local education authorities (“maintained schools”) into categories including “community schools”, “foundation schools” and two types of “voluntary schools” (“voluntary aided” and “voluntary controlled”).

32. A “community school” is maintained by the local authority.

33. SSFA section 21 lists three types of “foundation school”. These are a type of maintained school that replaced grant-maintained schools (which had been funded by the Secretary of State).

34. A voluntary aided school is a type of maintained school that has a charitable foundation and is funded by the Local Authority but with the governing body being responsible for most capital expenditure, employing the staff and acting as the school’s admission authority.

35. A voluntary controlled school is similar to a voluntary aided school, and is a maintained school where the buildings are largely owned by a voluntary organisation (SSFA section 20(1) (c) and schedule 3). The local authority employs the staff and is the admission authority, but will consult with the supporting body in drawing up the school’s oversubscription criteria.

36. The Academies Act 2010 created a new type of school. An academy is a form of independent school run by an academy trust. The trust receives funding from the Department for Education under a funding agreement. A distinct type of academy is a “free school”, which is newly established (typically by groups such as parents, teachers and/or charities), whereas academies other than free schools may be newly established or, as in the case of Twyford, converted from existing maintained schools.

37. An academy’s funding agreement will require it to comply with the same statutory obligations regarding admissions as apply to maintained schools and which are set out below.

38. SSFA section 69(3) provides for foundation or voluntary schools in England to have a “religious character” where so designated by order of the Secretary of State.

39. Independent schools, including academies, may be designated as having a religious character under SSFA section 124B(1), in which case section 69(3) also applies to them.

40. Schools designated as having a religious character are often referred to as “faith schools”.

41. According to the Secretary of State, there are about 7,000 faith schools in England of which 4,630 are CofE schools. Of the 7,000, 5,276 are voluntary aided, foundation or academy schools in which the admission arrangements are controlled by the proprietor or governing body. Some 1,409 faith schools are voluntary controlled schools in which the admission arrangements are controlled by the local authority. Some 96 free schools are faith schools. School admissions

42. Admission to maintained schools is governed by Part III of the SSFA. Some of the following details do not apply to sixth form admissions for which there is other provision, not material for present purposes.

43. Section 86 requires a local authority to make arrangements for enabling the parent of a child in its area to “express a preference as to the school at which he wishes education to be provided for his child” and to “give reasons for his preference”.

44. Section 88 identifies the “admission authority” for each school, which in the case of an academy is its proprietor. Section 88C requires the admission authority to determine the “admission arrangements” for each school year before it begins. Section 88D requires those arrangements to include “a determination of the number of pupils in each relevant age group that it is intended to admit to the school in that year”. That number is often referred to as the Published Admission Number, or “PAN”.

45. Subject to some exceptions, section 86(2) requires an admission authority to comply with a preference expressed by a parent under section 86(1). The material exception for present purposes is where “compliance with the preference would prejudice the provision of efficient education or the efficient use of resources”: subsection (3).

46. By subsection (5), no such prejudice shall be taken to arise from the admission of a number of pupils in a relevant age group which does not exceed the PAN. It follows that a school may refuse to comply with a parent’s preference because of prejudice which would arise from the admission of a number of pupils in the relevant age group exceeding the PAN.

47. Under regulations 13 and 14 of the School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England) Regulations 2012 (SI 2012/8, “the 2012 Regulations”), made under SSFA section 88F, an admission authority must carry out consultation on its proposed admission arrangements other than a proposal to increase its PAN or to keep the same PAN for the school year in question. There is therefore a duty to consult on a school’s proposed oversubscription criteria.

48. In the case of a school designated as a CofE school, the effect of the 2012 Regulations is also that the diocesan authority for the diocese in which the school is situated must be consulted. In the case of the Trust, the relevant body is the LDBS, which is the educational arm of the Diocese of London (see section 88F(3)(e) of the SSFA and regulation 34 and schedule 3 of the 2012 Regulations).

49. Under SSFA sections 84 and 85, a “code for school admissions” (“the Code”) is issued by the Secretary of State and is revised from time to time. In England, a statutory duty to act in accordance with relevant provisions of the Code applies to local authorities, the governing bodies of maintained schools, admission forums, appeal panels and adjudicators (i.e. the OSA). Academy arrangements impose the same duty on academies.

50. The following quotations are from the relevant edition of the Code for present purposes, which was issued in September 2021.

51. Paragraphs 1.6ff of the Code apply to oversubscription criteria, i.e. “the criteria against which places will be allocated at the school when there are more applications than places and the order in which the criteria will be applied”.

52. Paragraph 1.6 also states that if the school is not oversubscribed, then all applicants must be offered a place (save at certain grammar schools which are not material for present purposes).

53. Paragraph 1.7 states that all schools must have oversubscription criteria for each relevant age group and that the highest priority must be given to present and former looked after children.

54. Paragraph 1.8 provides, among other things: “Oversubscription criteria must be reasonable, clear, objective, procedurally fair and comply with all relevant legislation, including equalities legislation. Admission authorities must ensure that their arrangements will not disadvantage unfairly, either directly or indirectly, a child from a particular social or racial group…”.

55. Paragraph 1.36 of the Code provides that schools designated with a religious character “may use faith-based oversubscription criteria and allocate places by reference to faith where the school is oversubscribed.”

56. Paragraph 1.38 further provides: “Admission authorities for schools designated as having a religious character must have regard to any guidance from the body or person representing the religion or religious denomination when constructing faith-based admission arrangements….”.

57. The LDBS has produced guidance entitled “Admission and Appeals in Church of England Schools: Guidance for Admission Authorities” dated September 2022 (“the LDBS Guidance”), from which I note the following: a. Under the heading “Our Vision for Inclusive Education”, the guidance explains that “The Church of England’s vision for education is…for the common good of the whole community.” In keeping with this broader vision, the LDBS invites all of its schools “to make the needs of the most vulnerable and disadvantaged in their community a priority, and to be inclusive of all faiths and none.” b. A core obligation of an admission authority is to have an “…inclusive and distinctive Christian vision which is reflected in their admission arrangements”, and the guidance explains that “Admission arrangements make an important statement about the school’s local context and distinctive Christian vision.” c. In the section on “Church-Related Oversubscription Criteria”: (i) “… The LDBS requires admission authorities to be mindful that the original purpose of Church schools reflected in trust deeds, was to serve the children of the parish”; (ii) the LDBS “…strongly recommends that all admission authorities should… Maintain an equal 50/50 split between foundation and open places”.

58. Section 94 of the SSFA, and the School Admissions (Appeals Arrangements) (England) Regulations 2012, provide for appeals against decisions not to admit a child to a school. A statutory code for appeals, the School Admission Appeals Code (“the Appeals Code”), has been issued under section 84. These measures too are applied to academies via their funding agreements.

59. The Appeals Code requires a panel to uphold an appeal if it finds “that the admission arrangements did not comply with admissions law ... and the child would have been offered a place if the arrangements had complied or had been correctly and impartially applied”.

60. The OSA is constituted under SSFA section 25 and schedule 5. Section 88H enables a body or person to refer an objection to the OSA (there referred to as “the adjudicator”) about admission arrangements and requires the adjudicator to decide whether and (if so) to what extent the objection should be upheld.

61. Paragraph 3.1 of the Code provides that when dealing with an objection, the OSA “… must consider whether admission arrangements referred to [him] comply with the Code and the law relating to admissions.”

62. Following an OSA determination rejecting an objection, “the same or substantially the same issues” regarding the admission arrangements may not be raised with the OSA for a period of 2 years: see regulation 22 of the 2012 Regulations. Discrimination in school admissions

63. Section 85(1) EA 2010 provides that “the responsible body” of a school must not discriminate against a person “(a) in the arrangements it makes for deciding who is offered admission as a pupil; [or] (c) by not admitting the person as a pupil.”

64. The responsible body in the present case is the Trust, as the proprietor of the school which is an academy: section 85(7) (b) and (9)(b).

65. Section 19 of the EA (headed Indirect discrimination) provides: “(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.” (3) The relevant protected characteristics [include] — race; [and] religion or belief...”

66. A relevant “provision, criterion or practice” will be referred to as a “PCP”.

67. The protected characteristic of race is defined in section 9(1) of the EA broadly and non-exhaustively as including: “… (a) colour; (b) nationality; [and] (c) ethnic or national origins.”

68. Section 9(4) provides: “The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group”.

69. The case law (including under materially identical predecessor provisions) has long made clear that a racial group can be defined negatively i.e. by reference to those who are not members of it: see e.g. Orphanos v Queen Mary College [1985] AC 761 ; [1985] 2 WLR 703 (non-EC nationals) and R (Ward and ors) v Hillingdon LBC [2019] EWCA Civ 692 , [2019] PTSR 1738 (non-UK nationals) (“ Ward ”).

70. Section 89(12) of the EA gives effect to schedule 11, which contains exceptions to some of the provisions in relation to schools.

71. Paragraph 5 of schedule 11 to the EA, headed “School with religious character etc” provides, so far as material: “ and Section 85(1) (2)(a) to (d) , so far as relating to religion or belief, does not apply in relation to— (a) a school designated under section 69(3) of the (foundation or voluntary school with religious character);”. School Standards and Framework Act 1998

72. Paragraph 5 is a successor to an exception previously found in section 50 of the Equality Act 2006 (“ the 2006 Act ”). The 2006 Act had introduced for the first time a prohibition on religion or belief discrimination by educational establishments. At that time, direct and indirect race discrimination by educational establishments was prohibited by sections 1 and 17 of the Race Relations Act 1976 (“the RRA”). There was no exception in the RRA for faith schools. These were the provisions considered by the Supreme Court in R (E) v Governing Body of Jewish Free School [2009] UKSC 15 ; [2010] 2 AC 728 (“ JFS ”), to which I return below.

73. The proportionality analysis required by section 19(2)(d) of the EA is applied by asking and answering the four questions set out in Bank Mellat v HM Treasury (No 2) [2013] UKSC 38 ; [2014] AC 700 (“ Bank Mellat ”) at [74]: “(1) whether the objective of the measure [i.e. here the PCP] is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.”

74. Under section 19(2)(d) of the EA, the burden of establishing the proportionality of a prima facie indirectly discriminatory PCP falls on the putative discriminator (here the Trust).

75. The standard of proportionality sets a “high” and “exacting” standard, and it is for the putative discriminator “…to show, in the circumstances, that its aim or objective corresponds to a real need and that the means used are appropriate and necessary to achieving that aim, and any decision on these points must “weigh the need against the seriousness of the detriment to the disadvantaged group … The interests of society must also be considered”: JFS per Lord Mance at [97] (see also Lady Hale ([71]), Lord Kerr ([123]) and Lord Clarke ([154]).

76. Section 19(2)(b) requires a comparison exercise between, on the one hand, the claimant and others sharing the claimant’s relevant characteristic (race, in the present case), and, on the other hand, those who do not share it. Section 23(1) further provides that: “On a comparison of cases for the purposes of section … 19 … there must be no material difference between the circumstances relating to each case.”

77. This mandatory like-for-like comparison enables a court or tribunal to determine with confidence that the relevant PCP was in fact the reason for the difference in treatment between the claimant and the comparator.

78. Finally, section 136 of the EA provides (in relation to both direct and indirect discrimination): “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provisions concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.” Public sector equality duty

79. 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;”

80. In light of the exemption in paragraph 5 of Schedule 11 EA, the Claimants accept that the provisions relating to eliminating discrimination do not apply to the protected characteristic of religion or belief in the present context, but they submit that they do apply to the protected characteristic of race, and that both religion or belief and race are relevant protected characteristics for the purposes of the other two statutory equality objectives.

81. Where there is a failure to discharge the (procedural) requirements of the PSED, so that matters relevant to proportionality are not considered at the time of the relevant decisions, in a subsequent indirect discrimination claim the Court will consider any (necessarily ex post facto) justification with “great care” (see R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213 (“ Elias ”) at [133] and R(TTT) v Michaela Community Schools Trust [2024] EWHC 843 Admin , [2024] PTSR 1627 (“ TTT ”) at [225]-[226]). In Elias it was said at [131] that the onus is not on the court to “search around for a justification” that the policy maker has not put forward. The issues

82. The parties have helpfully produced an agreed list of issues: The Trust claim

1. Whether the Court should dismiss both of the grounds of claim in the Trust claim on the basis that the Claimants’ only remedy was and is the right of objection to the OSA and the right to bring judicial review proceedings against the OSA’s determination.

2. Whether the Court should uphold Ground 1, that the Trust and Panel acted unlawfully by discriminating against the Claimants in its admission arrangements and by not admitting DGT contrary to ss.85(1) and s.19 of the Equality Act 2010 by reason that the impugned criterion is indirectly discriminatory in relation to race.

3. Whether the Court should uphold Ground 2, that the Trust breached the public sector equality duty in s.149 of the Equality Act 2010 .

4. If the claim is allowed in whole or part, what if any relief is appropriate, including whether remedies must or should be refused pursuant to (a) section 31 (2A) and/or (b) 31(6) of the Senior Courts Act 1981 . The OSA claim

5. Whether the Court should uphold the sole ground of judicial review [that the OSA acted unlawfully in not upholding the Claimant’s objection that the impugned criterion indirectly discriminates in relation to race contrary to ss.85(1) and s.19 of the Equality Act 2010 ].

6. If the claim is allowed, the appropriate relief. Secretary of State for Education intervention

7. The correct construction of paragraph 5 of Schedule 11 of the Equality Act 2010 and whether it creates an exception to the prohibition in s.85(1) of the Equality Act 2010 for an indirect race discrimination claim where that claim arises out of the application of faith-based oversubscription criteria by a designated faith school.

83. I begin with the more technical or procedural issues before turning to the core discrimination issues. Issue 7: the meaning of paragraph 5 of schedule 11

84. The Secretary of State, represented by Joanne Clement KC and Zoe Gannon, intervened (as I have said) to make submissions on the point of statutory construction of paragraph 5 of schedule 11.

85. Ms Clement submitted first that the paragraph 5 exception means that the section 85(1) prohibition of discrimination does not apply to oversubscription criteria that relate to religion or belief. If it did, and if it therefore was triggered by a statistical disadvantage resulting to groups identified by race, faith schools would have to justify their faith-based oversubscription criteria notwithstanding those criteria being expressly permitted by the legislation.

86. That interpretation means that there could be no claim for indirect discrimination. Ms Clement conceded that paragraph 5 does not mean that a school could commit direct discrimination on grounds of race, even by an act which also related to religion or belief.

87. The Secretary of State’s fallback position, supported by the Trust, is that, even if section 85 does apply and therefore oversubscription criteria with a disparate racial impact must be submitted to the test of proportionality, the Court in applying that test should afford considerable weight to the policy rationale underpinning paragraph 5 of schedule 11.

88. Ms Clement emphasised the large number of faith schools in England and, therefore, their importance to the education system. She submitted that if faith-based oversubscription criteria amounted to unlawful discrimination under the EA, this would have brought to an end what is a long-standing ability of faith schools in England and Wales to apply such criteria based on the religious character or religious ethos of the school. Quite clearly, she submitted, Parliament cannot have intended that this would be the effect of the anti-discrimination legislation.

89. Ms Clement submitted that, instead, paragraph 5 of schedule 11 serves to exempt the responsible body from any claim for discrimination within section 85(1) , if the act (or PCP) that would otherwise amount to unlawful discrimination, relates to religion or belief. This is for four essential reasons.

90. First, she submitted that that is the ordinary meaning of the words used in the exception. The operative language used in paragraph 5 of schedule 11 is contained in the phrase “so far as relating to religion or belief”. These words are very different from the language used in the previous exemption in section 50 of the 2006 Act , which simply provided that the relevant sections “shall not apply in relation to” a school designated with a religious character. As a matter of ordinary language, the words used in paragraph 5 do not limit the exception from the relevant prohibition in section 85 to religion or belief discrimination but are broader in their effect.

91. Second, Ms Clement invited the Court to consider the key phrase in the context of the EA as a whole. She pointed to a number of provisions which create exceptions in relation to particular types of discrimination, such as (taking just one example) paragraph 6 of schedule 3 which disapplies section 29 (prohibiting discrimination in the provision of services) to the exercise of certain public authority functions “so far as relating to age discrimination or religious or belief-related discrimination ” (emphasis added). Those provisions unambiguously apply only to one specific type of act or omission whereas paragraph 5, she submitted, disapplies the relevant provisions to all matters “relating to religion or belief”, and in the present case the oversubscription criteria plainly relate to religion or belief even if they have a discriminatory impact relating to race.

92. Third, Ms Clement submitted that case law on the harassment provisions in the EA confirms that the phrase “relates to”, or “related to a relevant protected characteristic” in section 26 of the Act , is much broader than the equivalent terms under the predecessor legislation. The Employment Appeal Tribunal has held that if the conduct in question is “associated with the protected characteristic” then it “relates to” that protected characteristic for the purposes of section 26 : see, for example, Bakkali v Greater Manchester Buses (South) Ltd [2018] ICR 1481 at paragraph 26, per Slade J. In Blanc de Provence Ltd v Ha [2024] IRLR 184 , the EAT noted that the term “related to sex” was wider than “because of sex” and that it suffices to find “a relationship” between the unwanted conduct and sex (paragraph 33 per Judge James Tayler). A similar approach, she submitted, should be taken to the similar wording in schedule 11.

93. Fourth, Ms Clement emphasised the purpose of paragraph 5 of schedule 11, which is to make schools with a religious character free to adopt faith-based criteria. If a claim for indirect race discrimination can be brought as a result of the application of the faith based oversubscription criteria, the consequences would be startling. Conversely, it would not be surprising if every faith-based oversubscription criterion placed certain racial groups at a “statistical” particular disadvantage. The necessary consideration of what can be complex questions would place an extraordinary burden on admission authorities.

94. No assistance, she submitted, can be taken from JFS on this issue. Although Lord Mance considered the issue of indirect discrimination, he did not consider whether section 50 of the 2006 Act would have stood in the way of a claim. Only a minority, in obiter dicta, agreed with the conclusion of Munby J at first instance that section 50 did not have that effect. And, in any event, JFS was concerned with the different provisions of the 2006 Act and the Race Relations Act 1976 . The 2006 Act plainly could not have limited the effect of the 1976 Act without making an amendment to it. In the present case, by contrast, all the relevant provisions are found in the EA.

95. Reference was made to the Explanatory Notes to the EA, which contain the following comment on paragraph 5 of schedule 11: “ Effect

868. This paragraph allows schools which have a religious character or ethos (often referred to as faith schools) to discriminate because of religion or belief in relation to admissions and in access to any benefit, facility or service. It means that faith schools may have admissions criteria which give preference to members of their own religion and it allows them to conduct themselves in a way which is compatible with their religious character or ethos. It does not allow faith schools to discriminate because of any other of the protected characteristics, such as sex, race or sexual orientation. Nor does it allow them to discriminate because of religion in other respects, such as by excluding a pupil or subjecting him to any other detriment. Examples • A Muslim school may give priority to Muslim pupils when choosing between applicants for admission (although the Admissions Code will not allow it to refuse to accept pupils of another or no religion unless it is oversubscribed). However, it may not discriminate between pupils because of any other of the protected characteristics, such as by refusing to admit a child of the school's own faith because she is black or a lesbian. …”

96. Ms Clement submitted that this passage supports her interpretation, because the example of what is prohibited (discrimination “because of” another protected characteristic) is an example of direct, not indirect, discrimination.

97. As I am not persuaded by Ms Clement’s interpretation of paragraph 5 of schedule 11, I will not summarise the contrary submissions made by Mr Desai though some of them are reflected in what follows.

98. Paragraph 5 creates an exception, framed by the words “ Section 85(1) … so far as relating to religion or belief, does not apply …”.

99. What is being disapplied is the stricture in section 85(1) whereby a responsible body of a school “must not discriminate”. It is common ground that that is a stricture against both direct and indirect discrimination.

100. Section 13 defines the former as less favourable treatment of a person “because of a protected characteristic” and section 19 defines the latter as applying a PCP “which is discriminatory in relation to a relevant protected characteristic” and which is not justified under section 19(2) (d).

101. Section 85 therefore prohibits conduct which is connected in specific ways with the protected characteristics identified in section 4, one of which is “religion or belief”. In the case of direct discrimination and indirect discrimination, the prohibited conduct is either less favourable treatment which is “because of”, or (subject to justification) a PCP which “is discriminatory in relation to”, a protected characteristic. Either of those types of connection will define the conduct as discrimination.

102. In my judgment, when paragraph 5 states that “ section 85(1) … so far as relating to religion or belief, does not apply …”, the words “so far as …” can only mean that, when the exception applies, it is not unlawful to commit direct or indirect discrimination which is so defined by reference to the protected characteristic of religion or belief.

103. It follows that even where paragraph 5 applies, it remains unlawful to commit direct or indirect discrimination which is so defined by reference to any other protected characteristic. That is the plain ordinary meaning of the words used.

104. In Ms Clement’s suggested interpretation, the words “relating to” would have a wider meaning. Discrimination, arising from admission criteria, defined by reference to any protected characteristic would escape the stricture of section 85 , so long as the admission arrangements were in some way “relating to religion or belief”.

105. The fallacy in that submission is to read the words “relating to religion or belief” as if they identified or described the type of conduct which is to be excepted from the prohibition. Instead, those words identify the part of the legislation which is to be disapplied – i.e. section 85 , so far as it relates to the protected characteristic of religion or belief.

106. For that reason I am not materially assisted by the cases such as Bakkali in which it has been said that the harassment provisions in the 2010 Act , referring to conduct which is “related to” a protected characteristic, were intended to capture a wider range of conduct than conduct which was “because of” the protected characteristic. There the words “related to” are used in a significantly different context – i.e. to describe conduct – albeit within the same Act.

107. I therefore reject Ms Clement’s suggested interpretation. If Parliament had intended to permit schools not only to discriminate on grounds of religion or belief but also, in so doing, to discriminate on grounds of race (or any other protected characteristic), paragraph 5 would have said so in clear terms. That is not least because such a provision would have been controversial and would, as Mr Desai says, have radically changed the effect of the predecessor provision in the Equality Act 2006 (at least as it was interpreted in JFS at first instance at [137] by Munby J, with whom Lord Hope expressed agreement in the Supreme Court at [175]).

108. Meanwhile, there is nothing unusual about the notion of a party discriminating by reference to two different characteristics, one of which is permitted and one is not. See the landmark case of James v Eastleigh Borough Council [1990] 2 AC 751 , where free access to a swimming pool was given to those who had reached pensionable age which, at that time, was 60 for women and 65 for men. At that time direct discrimination on grounds of age was lawful, so their Lordships’ opinions contained no discussion about that form of discrimination. Regardless of the obvious but lawful discrimination on grounds of age, the House of Lords ruled that the differential treatment amounted to direct discrimination on grounds of sex, because sex discrimination was built into the age criterion that was being applied. The correctness of that decision was firmly emphasised by the majority of the Supreme Court in JFS .

109. It is true that, as Ms Clement says, the exception in paragraph 5 does not refer in terms to “discrimination”. But that, in my judgment, must be because section 85(1) only prohibits discrimination, as opposed to other conduct covered by other provisions of the EA such as victimisation or harassment. Those are prohibited by other sub-sections which are not disapplied by paragraph 5. Therefore a disapplication of section 85(1) is a disapplication of the law against discrimination and nothing else, and paragraph 5 did not need to refer specifically to discrimination in order to have that effect.

110. Nor am I persuaded to a different view by the use of different language in other excepting provisions elsewhere in the 2010 Act . Most, though not all, of the examples concern section 29, which prohibits discrimination, harassment and victimisation (and requires the making of reasonable adjustments) in the provision of services. Its structure is similar to that of section 85 . To take one typical example, paragraph 9 of schedule 3 provides: “Section 29, so far as relating to age discrimination, does not apply in relation to anything done in connection with [various matters pertaining to schools]” (emphasis added). This provision refers to a section and to a type of discrimination (and therefore not to victimisation or harassment), whereas paragraph 5 of schedule 11 refers to one subsection and to parts of another (which, themselves, are only concerned with discrimination) and to a protected characteristic rather than a type of discrimination.

111. I accept that that, and the other examples, reveal an inconsistency in the drafting of the EA. But this would be a very slender basis for concluding that Parliament intended paragraph 5 to have such a different and extensive effect, in the absence of any words which positively express that intention.

112. There is a further difficulty with Ms Clement’s suggested interpretation. On the face of it, it would mean that a school could apply an oversubscription criterion which was directly discriminatory on the ground of a protected characteristic such as race, sex or sexual orientation so long as it also “related to” religion or belief in some way. Ms Clement understandably disavowed that potential consequence, as I have said, asserting that such a criterion would inevitably “relate to” the other protected characteristic and not to religion or belief.

113. In my judgment that exposes the unworkability of her suggested interpretation. If, in order to test whether an oversubscription criterion fell within the exception, it was necessary to decide a binary question of whether it was properly viewed as “relating to religion or belief” or as “relating to” another protected characteristic (when in fact it related to both), that test, though performing a very important role, would be troublingly vague. Instead, those words simply and unambiguously identify the part of the EA which is disapplied by the exception.

114. I conclude that, notwithstanding paragraph 5 of schedule 11, it is possible in principle to bring a claim such as this claim against the Trust for discrimination in relation to race. Issue 1: whether there can be a claim against the Trust as well as the OSA

115. I first observe that this issue would be more suitable for decision at the permission stage. The Trust did not take the point in its Acknowledgement of Service (although the OSA claim had been issued at that point). By the time the Trust took the point in its Detailed Grounds, permission to bring both claims had already been granted. Consideration of alternative remedy therefore is now somewhat academic.

116. A second observation is that there is not an entire overlap between the subject matter of the two claims. The PSED ground is mentioned in the Statement of Facts and Grounds in the OSA claim but it is not a discrete ground of judicial review. The Trust’s alternative remedy objection therefore would not appear to be a good answer to the allegation against it of an on-going breach of the PSED.

117. Putting those observations on one side, I turn to the parties’ submissions.

118. The Trust was represented by Peter Oldham KC. He submitted that the Trust claim is barred by the availability of an alternative remedy, namely placing an objection before the OSA. The OSA is a specialist body and, unlike the Administrative Court, is well placed to investigate issues of fact. Mr Oldham submitted that dismissing a judicial review claim for this reason would not interfere with anyone’s access to a court because the OSA’s decisions are themselves amenable to judicial review.

119. In oral argument Mr Oldham made it clear that he does not dispute that the Court has jurisdiction over the Trust claim. Rather the claim should be rejected as a matter of discretion because of the existence of the suitable alternative remedy.

120. He relied, by analogy, on Re McMinnis [2024] NICA 77 where at [121-143] the Northern Ireland Court of Appeal held that a complaint of failure by the Department of Health to comply with the local equivalent of the PSED ( s 75 of the Northern Ireland Act 1998 ) could not be brought by way of judicial review against the Department because there was a right of statutory reference to a specialist equality body, the Equality Commission.

121. Mr Oldham also pointed out that allowing a claim for judicial review of an admission authority’s adoption of admission arrangements could have the effect of circumventing the bar on the OSA considering the same issue within 2 years of a determination under regulation 22 of the 2012 Regulations (see [62] above).

122. In JFS , Mr Oldham noted, Munby J permitted the challenge to JFS’s admission policy to proceed because the issue, whether an oversubscription criterion reserving places for people regarded as Jewish according to Orthodox law amounted to direct discrimination on grounds of race, was an issue of pure law and there could be no question of justification. Munby J expressly left open the question of “the proper approach in other more typical situations where the Schools Adjudicator is being asked to deal with matters of an educational nature where he really does have an expertise which the court lacks”.

123. Tom Cross KC, representing the OSA, agreed that if a person aggrieved about admission arrangements sued the admission authority directly, without first making their objection to the OSA, they would “risk running into the principle that they must first exhaust a suitable alternative remedy”. But, as he said, that does not mean claims only lie against the OSA and not against an admission authority as well.

124. He relied on St George’s, University of London v Rafique-Aldawery [2018] EWCA Civ 2520 [2019] 2 All ER 703 , which concerned the question of what if any steps a student should take to preserve their right to seek judicial review of a university’s decision whilst pursuing a complaint about the same matter to the Office of the Independent Adjudicator for Higher Education (“OIA”). The Court’s recommended course (putting the university on notice of a possible claim while pursuing the OIA matter) was inconsistent with any suggestion that there could not be a claim against the university in principle. The same approach, he submitted, should apply to schools.

125. Accordingly, Mr Cross submitted that in a judicial review claim following the dismissal of an objection by the OSA, a claim against the admission authority is plainly available, and it should be treated as the primary claim even if there is also a claim against the OSA. That was what happened in JFS , where there was no separate determination of issues against the OSA. In the present case, he pointed out, the non-judicial remedy has now been exhausted, by contrast with the situation in McMinnis on which Mr Oldham relied. Here, he submitted, the claim against the OSA adds nothing to the claim against the Trust.

126. On this issue I am not greatly assisted by McMinnis . The case arose from section 75 of the Northern Ireland Act 1998 which imposed on public authorities a duty of a somewhat similar kind to the public sector equality duty in England and Wales. Section 75(4) gave effect to schedule 9 to the 1998 Act which made “provision for the enforcement of the duties under this section”. Schedule 9 required public authorities to produce equality schemes. Paragraph 10 of the schedule provided for the Equality Commission of Northern Ireland (ECNI) to investigate complaints of failure by a public authority to comply with an equality scheme and to produce a report whose recommendations, if not complied with, could be the subject of a direction by the Secretary of State. In McMinnis the High Court had quashed a policy decision by a Government Department on the grounds of failure to comply with the section 75 duty. Following earlier Northern Ireland case law, the NICA allowed an appeal, ruling that the legislature, by schedule 9, had “reserved all cases belonging to this category” to the ECNI.

127. It seems to me that that ruling was specific to its Northern Ireland legislative context.

128. In the present case, as I have said, section 88H of the SSFA requires the OSA to determine objections. Section 88K provides: “(1) Subsection (2) applies to any decision of the adjudicator— (a) under section 88H(4) on whether to uphold an objection to admission arrangements, or (b) under section 88I(4)(b) or (5)(b) on whether admission arrangements conform with the requirements relating to admission arrangements. (2) Any decision of the adjudicator to which this subsection applies is binding on— (a) the admission authority in question, and (b) any other person or body. (3) Where the adjudicator makes a decision mentioned in sub section (1 ), the adjudicator must publish a report containing— (a) the adjudicator's decision on the objection or (as the case may be) on whether the admission arrangements conform with the requirements relating to admission arrangements, and (b) the reasons for that decision.”

129. Paragraph 3.1 of the Code also requires the OSA to consider whether admission arrangements “comply with the Code and the law relating to admissions”. It is common ground that the relevant “law” includes equalities legislation such as section 85 of the EA.

130. The EA, under the heading “Proceedings”, provides in section 113: “(1) Proceedings relating to a contravention of this Act must be brought in accordance with this Part. … (3) Sub section (1 ) does not prevent – (a) a claim for judicial review … ”.

131. I note also that the JFS case, like this one, involved separate judicial review claims against the school’s governing body and the OSA. Both of those entities participated in the hearing although the OSA took a back seat, making only written submissions. At first instance, Munby J (at [271]) rejected the suggestion that the school was not an appropriate defendant to a challenge of this specific kind and that issue went no further.

132. In the present case, as well as facing the PSED ground which the OSA did not face, the Trust has played a key part, filing important explanatory evidence about the admission arrangements for its schools. Even if the Claimants had opted only to seek judicial review against the OSA, it is highly likely that the Trust would have been an interested party, given that what is at stake is not merely the correctness of the OSA’s decision but the lawfulness of the school’s admission arrangements. It seems correspondingly unlikely that it would be in the interests of a school to be excluded or distanced from proceedings of this kind. It would always be open to a school and the OSA, in such a case, to arrange by appropriate case management for one or the other to take the more active role with a view to limiting the costs to be incurred.

133. Finally, I am not convinced that regulation 22 of the 2012 Regulations has any particular significance in relation to this issue. If the OSA decides that an admission criterion is lawful, regulation 22 means that another challenge to the lawfulness of the same criterion cannot be made for two years. If, before the end of the two years, a parent challenges the same criterion by way of a judicial review claim against an admission authority, then the Court may have to decide whether the claim is an illegitimate attempt to sidestep regulation 22. But that is not the same as the question of whether a school admission authority and the OSA can be challenged at the same time.

134. For all of those reasons I conclude that it is not appropriate to dismiss the Trust claim on the ground of the existence of an alternative remedy against the OSA. Issue 4(b): delay

135. Nor am I persuaded that, if the Trust claim succeeded, any relief should be refused by reason of delay.

136. Section 31(6) of the Senior Courts Act 1981 provides: “Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant— (a) leave for the making of the application; or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

137. Granting a remedy which requires the school’s oversubscription criteria to change could cause prejudice or detriment sufficient to engage section 31(6) because of its potential effect on the timetable for each year’s admissions process. For the school year 2026-27 that timetable has already begun. For the school year 2027-28, consultation will begin in October 2025.

138. Mr Oldham argued that this is precisely the sort of case to which section 31(6) should be applied. The Claimants will have known about the oversubscription criteria since at least the autumn of 2023, and they brought their claim right at the end of 3 months from the rejection of their appeal.

139. However, I am not satisfied that there was “undue delay” in the making of the Trust claim, having regard to the chronology of events.

140. Time ran from the point at which the Claimants became aware of the decision challenged. The school’s decision not to offer DGT a place was notified on 1 March 2024. The Panel determination refusing CKT’s appeal was dated 24 May 2024. A pre-action protocol letter was sent on the Claimants’ behalf on 14 June 2024 putting forward the claim. A substantive response was sent on 26 July 2024. On 1 August 2024 the Claimants’ solicitors proposed to issue the claim on a protective basis with a stay to follow, pending the outcome of the objection to the OSA. The Trust’s solicitors agreed to that course by a letter of 8 August 2024. The Claimants’ solicitors lodged the claim by email on 23 August 2024, one day under three months from the Panel decision, though the claim form was sealed on 28 August 2024. The OSA’s determination was made on 18 November 2024. Correspondence ensued. On 17 December 2024 the Claimants and the Trust made an application by consent for an order that a replacement Statement of Facts and Grounds could be filed in the Trust claim by 24 January 2025, and it was in fact lodged on 25 January 2025. The OSA claim was lodged on 27 January 2025. On 21 March 2025 Calver J granted permission for both claims and joined them, but declined to expedite them.

141. It was always obvious that the Trust claim was issued on a protective basis but could not progress until after an OSA determination. For the Trust claim to have been issued earlier than it was would not have served any purpose and certainly would not have avoided any relevant prejudice or detriment. Issues 2 and 5: indirect discrimination The parameters of the issue

142. The central issue in the case is that of whether the impugned criterion unlawfully indirectly discriminates against people such as the Claimants by reference to race. Subject to the questions which I have already discussed about the interplay between the Trust claim and the OSA claim, it determines issue 5 as against the OSA as well as issue 2 as against the Trust and the Admission Appeals Panel

143. It is common ground that the impugned criterion is, in the language of EA section 19 , a “provision, criterion or practice” (“PCP”) whereby the CofE Extra Point is available to some applicants for Christian foundation places at Twyford.

144. It is also clear that the PCP places those who cannot qualify for the CofE Extra Point at a “particular disadvantage” compared with those who can. Of 190 year 7 places at the school, 150 are foundation places for which the Extra Point is often decisive. The Claimants’ submissions

145. Mr Desai argued that this PCP places persons of non-white ethnicity or colour and/or non-English national or ethnic origin at a particular disadvantage (compared with persons of white ethnicity or colour and/or English national or ethnic origin) because it makes it comparatively less likely that they will obtain a foundation (or any) place at Twyford.

146. That is on the factual basis that the congregations of non-CofE Christian churches (such as the church attended by CKT and DGT) have a greater proportion of persons of non-white ethnicity or colour and/or non-English national or ethnic origin than CofE congregations. Members of the former group cannot earn the CofE Extra Point and therefore are much less likely to be offered places at Twyford.

147. To make that point good, the Claimants rely on the evidence of research carried out by their solicitor Daniel Rosenberg and summarised in his first witness statement. He refers to publicly available data showing that Anglican churches comprise considerably lower proportions of people of non-white ethnicity than most other Christian denominations, that those attending Anglican churches in London are a relatively small proportion of all London churchgoers and that the majority of London churchgoers are non-white.

148. Although the Trust argues that relying on the church attendance data is not comparing like with like and does not identify the discriminatory impact of the PCP, Mr Desai responded that it should be for the Trust to adduce evidence rebutting his suggested inference of comparative disadvantage. He relies on Chief Constable of West Yorkshire Police v Homer [2012] UKSC 15 , [2012] ICR 704 at [14] for the proposition that statistical evidence is not required to establish such an inference, a fortiori where such data are not available. There are no data on the racial or ethnic characteristics of applicants for a place at Twyford who scored only 20 points.

149. Mr Desai did however rely on other statistical information (of which the sources are identified in his skeleton argument) to strengthen his case as to comparative disadvantage, i.e. on data: a. comparing the racial/ethnic composition of the holders of foundation places at the school with the intake at the Trust’s other two CofE schools, showing those other schools admitting between half and a seventh the rate of white British pupils; b. comparing numbers of pupils with English as a second language (a strong proxy for ethnicity/national origins) at those schools, showing the proportion of such children at Twyford to be less than half that at the Trust’s other two CofE schools (though there is also data, described by Mr Desai as “slightly surprising”, showing that Twyford has more Tigrinya speakers than the other schools); c. comparing the racial composition of the geographically very proximate, non-faith Ark Academies, where the percentage of pupils who are white British is just a fifth of the percentage of holders of foundation places at Twyford who are white British, and showing that the Ark Academies have between three and four times more children with English as a second language; d. comparing the demographics of children of the relevant age in the areas from which Twyford draws its pupils, showing a marked difference in the proportion of those of white British heritage; and e. from another oversubscribed London CofE school, again showing that white British children obtained about 35% of places for CofE applicants, compared with only 16% of non-CofE Christian places.

150. Mr Desai also submitted that the focus should not be purely on the position of applicants such as his clients who score 20 points, because there will also be others who are deterred from applying by the knowledge that they are very unlikely to succeed.

151. Turning to the proportionality test, Mr Desai contended that although the judgments of the Trust should be given an appropriate margin of respect, this is a case where the Trust in framing its admission arrangements did not turn its mind to the question of differential impact on grounds of race, and therefore the Court must assess proportionality for itself, applying a closer scrutiny: see Belfast City Council v Miss Behavin Ltd [2007] UKHL, [2007] 1 WLR 1420 at [37] and [47]. That was a point which he also said that the OSA had not appreciated. He also referred to Ward at [95], where Lewison LJ commented on the impossibility of carrying out the balancing exercise where a defendant adduced no evidence about the scale of the disadvantage suffered.

152. Mr Desai accepted that preserving the religious character and ethos of a school is a legitimate aim which could justify faith-based oversubscription criteria in principle. However, he submits that this part of the test necessitates an assessment of the aim in the circumstances of this particular case. He contends that the Trust did not place before the OSA, and has not placed before this Court, any real evidence of Twyford having a distinctive Anglican character and ethos that materially differs from that of its two sibling CofE designated Trust schools. To the contrary, all of the evidence is to the effect that the Trust’s CofE schools share a common Anglican vision and ethos evidenced by their shared constitutional documents and policies.

153. Mr Desai therefore submitted that where the evidence shows that the Trust’s other designated CofE schools have been no less successful in maintaining this shared Anglican vision and ethos without recourse to the impugned criterion (or any faith-based oversubscription criteria), it is not easy to see how the Trust can demonstrate that its aim or objective corresponds to a “real need”.

154. In those circumstances he submitted that there is no rational connection between the legitimate aim and the impugned criterion. To the same effect, he rejects the Trust’s assertion of a need to meet a level of “demand” from CofE families because there is no articulation in evidence of why meeting that demand is necessary to preserve the school’s ethos.

155. Mr Desai further contended that the Trust could have adopted less intrusive means to achieve its legitimate aim. To do so would have been consistent with the LDBS guidance, which merely permits but does not require faith-based oversubscription criteria and, even where there are such criteria, makes the “strong recommendation” of a 50/50 split. He further pointed out that there are other Diocesan authorities (such as in Oxford and Leicester) which advise admission authorities against operating faith-based oversubscription criteria at all. And, the evidence is that the Trust’s other two CofE designated schools have very successfully preserved their Anglican character and ethos without recourse to such criteria. He submitted that the Trust has failed to explain why the measures adopted in its other CofE designated schools would not suffice, or why it could not mitigate the effect by removing the CofE Extra Point or by limiting foundation places to a lower proportion in accordance with the LDBS guidance.

156. It is also incumbent on the Trust, Mr Desai contended, to explain and evidence how, or to what extent, admitting those such as DGT who obtain 20 points by worshipping (with their family) at churches affiliated to Churches Together in Britain and Ireland - as opposed to CofE churches - would unacceptably compromise Twyford’s ethos and character.

157. The evidence, Mr Desai argued, does not show that the Trust has turned its mind to these matters and therefore does not identify any assessment or rationale on the part of the Trust. He prayed in aid the view of Lord Mance and others in JFS to similar effect (to which I return below), and other cases where the Court had a lack of relevant information such as R (Coll) v Secretary of State for Justice [2017] UKSC 40 , [2017] 1 WLR 2093 (“ Coll ”) at [42]57 [AB/45/1151] and Ward .

158. Mr Desai contrasted this case with TTT , where Linden J found (at [257]-[267]) that the defendant had identified the disparate equality impact of the decision in issue and consciously considered all relevant equality implications on a sufficiently informed basis.

159. Mr Desai also submitted that the Trust has failed to identify any cogent justification for the departure from the “strong recommendation” in the LDBS guidance to maintain a 50/50 split (in order to facilitate inclusion and the common good), which the Code, interpreted according to public law principles, requires to be followed unless there is a good reason for departure.

160. Although the Trust and LDBS seek to justify the departure by characterising the approach of the Trust as a “one trust, four schools” approach” and by averaging the foundation/open places split across the four schools, Mr Desai pointed out that the LDBS recommendations are not about an appropriate average split across a multi-academy trust. Instead they are about setting arrangements for an individual school that are appropriate for its “local context” and that take into account the original purpose to serve “children of the parish”. In this case, he argued, the geography of the other oversubscribed Trust schools means that many children in the immediate vicinity of Twyford have no hope of gaining admission to the other Trust CofE schools. He complains that the Trust has overlooked this and has proceeded on the incorrect assumption that the children of the parish shut out from Twyford by the impugned criterion are “free to apply to other Trust schools”. Meanwhile the OSA, he submitted, recognised that these other schools were oversubscribed but failed to grapple with the significant implications of this. The Defendants’ submissions

161. In response, Mr Oldham submitted first that the PCP did not put the Claimants and those sharing their characteristic of race at a “particular disadvantage”. That differential impact must be shown among those affected by the impugned criterion: Essop and others v Home Office [2017] UKSC 27 , [2017] 1 WLR 1343 at [40-41] per Baroness Hale. Those, he submitted, were people who achieved 20 points. The evidence, he submitted, does not establish the racial composition of that group or indeed of the cohort of applicants for places at the school.

162. He also submitted that the Trust would not be able to collect such evidence itself because of paragraph 2.4 of the Code which provides: “2.4 In some cases, admission authorities will need to ask for supplementary information forms in order to process applications. If they do so, they must only use supplementary forms that request additional information when it has a direct bearing on decisions about oversubscription criteria or for the purpose of selection by aptitude or ability. Places must be allocated on the basis of the oversubscription criteria only. .... Admission authorities must not ask, or use supplementary forms that ask … for: a) any personal details about parents and families, such as maiden names, criminal convictions, marital, or financial status (including marriage certificates); b) the first language of parents or the child; ...”

163. Mr Oldham also pointed out that, notwithstanding the racial composition of the populations referred to in Mr Rosenberg’s evidence, the same composition might not be found among those who, by parental choice, actually apply for places at the school. He resisted the suggestion that first language is a strong proxy for race, pointing out that Twyford has more Tigrinya speakers than the other Trust schools.

164. Mr Oldham argued in the alternative that the criterion is a proportionate means of achieving a legitimate aim. He pointed out that on this issue, this Court is not a primary decision maker (compare TTT at [224]). And even if the Trust had not turned its mind to the question of differential impact, he submitted, justification is an objective question (see Magoulas v Queen Mary University of London UKEAT/0244/15 per Laing J at [7(11)]). The facts, he submitted, were different from those of Miss Behavin’ where in any event Lord Kerr emphasised at [37] that it was necessary to give “due weight to the judgments made by those who are in much closer touch with the people and the places involved than the court could ever be”. He also urged me to give weight to the OSA’s decision, contending that it would be extraordinary for an applicant to lose on this question before the OSA but win before this Court.

165. More generally, he submitted that the aim of ensuring that the Anglican character and ethos of the school is preserved is manifestly legitimate, given the designation of the school as a CofE school and the provisions of the Trust’s articles of association and Scheme of Delegation.

166. There is, he contended, substantial evidence demonstrating that the School does indeed have a powerful distinctive vision or ethos, in the witness statement of Dame Alice Hudson to which I have already referred, and in material to which she refers, including notably the report of the Statutory Inspection of Anglican and Methodist Schools (“SIAMS”) (WSB 414-416) which says that “the 10:10 ethic ...is seamlessly embedded into all aspects of school life” and that the School “lives out the Christian vision”. See, for example, the Trust’s 2023 review of its Spiritual, Moral, Social and Cultural life policy which states: “10:10 Ethic and SMSC – Christian vision of Trust The foundation of the Trust ethos comes from Jesus speaking to his disciples: ‘I have come that you might have life and have it to the full.’ John 10.10 … The educational values and disciplines inspired by this text are referred to in all Trust schools as the 10:10 ethic … The overall mission of the Trust is to communicate the love of God in Christ by providing and resourcing schools that: • Model Christian distinctiveness within the Church of England family of schools • Serve the communities for which they are founded. • Help every child gain a secure hope and a future (Jer 29:11) • Resource the education profession though sharing best practice in innovative teaching and learning.”

167. Dame Alice also said that the school “takes responsibility for modelling the Anglican worship practice which is then shared with the three other Trust schools” and undertakes outreach “which could not realistically be led from the other Trust schools because it is Twyford which has the distinctively Anglican practice”.

168. Mr Oldham submitted that there is no challenge to the Trust’s evidence that, though the Trust’s schools share a common vision, the school has a very particular approach to putting it into practice.

169. In the JFS case, Mr Oldham submitted, the obiter comments on indirect discrimination in fact assist the Trust, because it was said there that it was a legitimate aim for JFS to encourage and assist children regarded by Orthodox Judaism as being Jews to educate themselves about its tenets (Lords Mance, Kerr and Clarke) and to promote the religious principles that underpinned their faith (Lords Hope, Rodger, Walker and Brown).

170. Taking the Bank Mellat questions in turn, Mr Oldham contended first that the Trust’s aim clearly was sufficiently important, given the recognition of faith-based criteria by Parliament.

171. As to rational connection, he invited the Court to adopt the OSA Determination at [50]: “The Trust is of course aware that there may be children who want to have an education underpinned by Christian values but who do not meet the admissions criteria of Twyford CofE. In response to that demand, the Trust set up three other schools with an open admissions policy.”

172. Mr Oldham also submitted that there is nothing irrational about an objective of meeting demand from a particular community, particularly in light of the diocesan guidance stating: “The LDBS recognises that school and local circumstances vary widely across the diocese, which will mean that faith-based oversubscription criteria will also vary widely”.

173. As to whether a less intrusive measure could have been used, Mr Oldham noted again that the school models Anglican practice for the other Trust schools. Although foundation places are 150 out of 190 in each year at Twyford, they are only about 20% in the Trust’s schools taken as a whole. Evidence from Penny Roberts MBE, the Diocesan Director of Education for the LDBS, states that the Diocese regards the Trust’s approach as consistent with its guidance. Further, he submitted, the practice of other Dioceses and schools does not prove that any different practice at this school is more intrusive than necessary.

174. Overall, Mr Oldham contended that the criterion strikes a fair balance in an oversubscribed school. Other schools without a religious character are available in the area, namely Ark Soane and Ark Acton. Here, by contrast with the JFS case, he submitted that there is clear evidence that the school was pursuing a proportionate aim. The Trust could not have gathered better evidence because it has no power to investigate the racial profile of those who scored 20 points.

175. For the OSA, Mr Cross emphasised that in the claim against his client, the Court is reviewing the decision of a specialist regulator and considering whether its decision (that the criterion satisfied the test of proportionality) was reasonably open to it. That was on the basis of the material before the OSA, which was much more limited than the material now before the Court (for example, it did not include submissions, supported in this Court by maps, about the difficulty of securing places at the Trust’s other schools), and on that basis Mr Cross invited me to dismiss the claim against the OSA even if the claim against the Trust succeeds.

176. Mr Cross emphasised that the CofE Extra Point is an example of a practice-based admissions criterion i.e. one which favours active participants in a religion. In that respect, it differs from the criterion at issue in JFS , and it is fairly and squarely the type of criterion which is contemplated by the legislation and the Code.

177. He pointed out that no issue has been taken with the process followed by the OSA’s experienced adjudicator. Nor is it alleged that the adjudicator did not correctly direct himself as to the relevant statutory provisions.

178. Mr Cross also noted that the adjudicator proceeded on the basis that the criterion did indeed significantly disadvantage a group sharing a characteristic of race with the Claimants, creating a substantial adverse effect. He applied the Bank Mellat test. He found that the Trust’s aim was as summarised above and was legitimate, and sufficiently important to justify limiting the right, having regard to Parliament allowing faith schools to discriminate. His decision included a thoughtful analysis of the contention, which he rejected, that the CofE Extra Point could not be justified because it was not applied in the Trust’s other schools, noting the Code’s emphasis on having regard to local circumstances and the Trust’s choice to maintain a close relationship between the school’s oversubscription criteria and its designated CofE character. He therefore also found a rational connection and that a less intrusive measure would not have achieved the aim of giving a higher priority to Anglican worshippers.

179. Mr Cross referred me to case law on judicial review of the OSA (and predecessor) decisions which emphasises the need for caution when reviewing a decision of an expert body, and the need for the Court not to substitute its own consideration of the facts. Moreover, he submitted, the OSA’s decision involved an exercise in evaluative assessment and balancing rather than a hard-edged question of law, underlining the need for caution. So, in R (Sharp) v Impact Multi Academy Trust and OSA [2023] EWHC 1242 (Admin) , the Upper Tribunal Vice President Mr Mark Ockelton said: “31. … The adjudicator has a statutory function which will involve assessment, evaluation and balance. On judicial review it would not be appropriate for the Court to attempt to perform those functions itself …” and: “33. Thus the fact (if it be a fact) that a different adjudicator might reach a different view … is nothing to the point. If the assessment made by the adjudicator was open to her as a matter of public law, it is unassailable in this Court.”.

180. Mr Cross essentially echoed the submissions of Mr Oldham about the legitimacy of the school’s aim, referring also to the Supreme Court’s decision on that issue in JFS on much more extreme facts, and about rational connection. He too pointed out that less intrusive means and fair balance often overlap (see Lord Sumption in Bank Mellat at [20]), and that the adjudicator gave detailed and logical reasons for not upholding the objection.

181. In summary, Mr Cross submitted that the adjudicator was entitled to reach the conclusion that he reached on proportionality, bearing in mind that faith-based oversubscription criteria will almost always, by their very nature, disadvantage one racial group by comparison with another. To find otherwise could undermine the established operation of faith-based admission arrangements. He rejected the criticism of a failure to “grapple with” the racial disparity point, given that the adjudicator had well in mind the admissions numbers and therefore found a substantial disadvantage to exist. There is no evidence that he did not properly understand the case about racial impact or the different ways in which it could be put, e.g. appreciating that the disadvantage applied to a wider population than just the Eritrean community.

182. In terms of the outcome, Mr Cross also emphasised the differences between this case and JFS . The criteria in that case advantaged some non-practising Jews over some practising Jews, the case touched on a controversy about who should be regarded as Jewish for admission purposes and, by contrast with the facts of this case where DGT did get a place at a suitable school, denial of a place at JFS deprived some individuals of the religious education that was suitable for them.

183. Finally Mr Cross pointed out that any failure to comply with the PSED in adopting a criterion (an issue which is dealt with on its merits below) does not mean, per se, that the criterion is unjustified: see TTT at [223]-[225] and R (CWJ) v Director of Legal Aid Casework [2025] EWHC 306 (Admin) at [135]. Submissions of the Interested Party

184. LDBS, as an interested party in the claim against the OSA, was represented by Sarah Hannett KC. Her submissions were confined to the issue of proportionality which would arise if the Court held that the “particular disadvantage” hurdle of the indirect discrimination claim were surmounted.

185. Ms Hannett explained that her client, as the Diocesan Board for Education for London pursuant to regulation 1 of the Diocesan Boards of Education Measure 2021, supports and advocates for CofE schools and pupils in London and must be consulted about proposed admission arrangements for schools in the Diocese designated as having a CofE character.

186. She emphasised that section 69(3) of the SSFA permits an order to state “the religion or religious denomination” of a school and that a school so designated is permitted by paragraph 1.36 of the Code to use faith-based oversubscription criteria.

187. Ms Hannett took the Court to relevant passages from the LDBS guidance to which I have already referred (paragraphs 57(c) and 172 above).

188. Applying the test of proportionality, Ms Hannett invited me to (a) afford a margin of judgment to decision makers when determining whether there were less intrusive means of achieving their aims ( R (Ul Haq) v. Walsall Metropolitan Borough Council [2019] PTSR 1192 at [73] and [98] and TTT at [222], (b) grant the adjudicator a degree of respect given his expertise in the area of school admissions and (c) apply a “school-specific” analysis.

189. Like Mr Oldham, Ms Hannett submitted that there are distinctive features of the school’s ethos whereby it acts, in a sense, as a “parent” school to the Trust’s other schools. It models Anglican worship practice which is shared with the other schools, supports Christian youth fellowship jointly with local Anglican churches, has a larger chaplaincy team because it has more pupils who make individual professions of faith and has a wider range of church-focused activities and events, and its pupils sit the GCSE in Religious Education a year earlier than the pupils at the other schools.

190. Ms Hannett submitted that the grant of the CofE Extra Point is clearly rationally connected with the aim. The Trust has explained why the different schools have different criteria. It is not irrational to meet a certain demand for a CofE education for the children of CofE families.

191. Turning to the “less intrusive means” question, Ms Hannett submitted that (1) dispensing with any faith criterion would undermine the school’s Anglican ethos, (2) so would dispensing with the CofE Extra point by failing to give any priority to Anglican applicants and (3) reducing the proportion of foundation places would not necessarily lessen the disparate impact on non-white or non-British applicants, bearing in mind that the criteria for foundation places put those in the position of the Claimants (non-Anglican Christians) in a better position than other applicants who cannot satisfy any faith-based criteria.

192. Ms Hannett emphasised that the faith-based criterion, endorsed by Parliament, is transparent and is fair because of the school’s designation as a CofE school and because 20 points has been sufficient for some applicants in some years. Moreover, any racial impact is mitigated by the fact that the category of churches “in communion with” the CofE encompasses some 61 churches from many parts of the world.

193. The LDBS position is that Twyford’s criterion is not a departure from its guidance. Whilst admissions authorities are advised to maintain an equal split between foundation and non-foundation places, the guidance also notes that local circumstances will vary widely, and therefore so will faith-based oversubscription criteria. Discussion and conclusion

194. It is clear that those who are able to earn the CofE Extra Point have a significant advantage over those who cannot.

195. 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.

196. 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. Paragraph 2.4 of the Code forbids admission authorities from asking questions of or about applicants other than those which have “a direct bearing on decisions about oversubscription criteria”. Whether or not there is a lawful way of gathering the missing data, I accept that it is missing because of the Trust’s understanding of the effect of paragraph 2.4 and I do not hold that against the Trust.

197. Obviously there are also no data about the race or ethnicity of any parents who did not apply to Twyford because they were dissuaded by the knowledge that they could not earn the Extra Point.

198. A second difficulty is that of deciding which groups should be compared. That question often arises in discrimination claims and in many cases determines the outcome. 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?

199. Doing the best that I can with limited information, I find on the balance of probabilities that there is a significant difference between the racial or ethnic profile of the (predominantly) CofE worshippers who can earn the Extra Point and other Christians who can earn 20 points but who cannot earn the Extra Point.

200. It seems to me that that is a reasonable comparison to make, because around 90% of the places at the school are allocated according to a faith-based criterion (Rosenberg 1, paragraph 37), the others being allocated according to other closed criteria (looked after children, siblings and music places) and it is therefore very likely that a substantial proportion of applications for places will come from families who satisfy at least some part of the faith-based criteria.

201. The assumption which, on balance, I am persuaded to make is that there is a sufficient degree of correlation between the racial profiles of (1) those who earn the Extra Point and (2) attenders of CofE churches in London, and between the racial profiles of (3) those who earn only 20 points and (4) attenders of non-CofE churches in London.

202. The relevant statistics are those referred to in Mr Rosenberg’s first witness statement at paragraphs 54-59 (regarding churchgoers) and 60-83 (regarding schoolchildren). They provide a basis for concluding that a large proportion of those in group (2) are white and that a majority of those in group (4) are not. It is logical to infer that the racial profile of group (2) will significantly influence the racial profile of group (1) in a way that makes it significantly different from the racial profile of group (3), and that inference is supported by statistics showing a significantly higher proportion of white children at Twyford than in any of the other schools in the area with which it has been compared, including the Trust’s other schools which do not have faith-based admission criteria and other schools which do not have a faith designation.

203. Although the available statistics persuade me that the disparate impact is significant, I cannot be confident of its exact extent or size, bearing in mind also that the Extra Point can be earned by those who attend those worldwide churches which are “in communion with” the CofE, and that the racial profile of successful applicants is also liable to be affected by the availability of “World Faith” places.

204. I nevertheless conclude, on the balance of probabilities, that the criterion is indirectly discriminatory in relation to the protected characteristic of race, unless it is a proportionate means of achieving a legitimate aim.

205. Turning to justification, I make some general observations to place the exercise in its proper context.

206. First, I accept the submission of Ms Clement and Mr Oldham that the Court should afford considerable weight to the policy rationale underpinning paragraph 5 of Schedule 11. Faith-based admissions criteria by their nature are likely to have a disparate impact on different racial or ethnic groups but Parliament permitted them, no doubt in full knowledge of that fact.

207. Second, faith-based admissions criteria, by their nature, may leave all those who cannot comply with them with a sense of injustice. It is not hard to feel for the plight of DGT, who could see from his bedroom window this excellent school where he would have felt very comfortable and to which I am sure he would have been a credit, but which he could not attend because his Christian church was not the right sort of Christian church. In other years, when some places did go to applicants with 20 points, he might have been luckier. But even that would not be the case for an equally deserving applicant who also lived within sight of the school but was not a practising member of any religion. The large proportion of the population in that category, it must be remembered, do not benefit from “foundation places” at any school. Their disadvantage has no connection with the protected characteristic of race.

208. Third, it is reasonable to assume that Parliament was aware of the general potential for unfairness, as well as for a disparate racial impact, when adopting the policy permitting the use of faith-based admissions criteria. It is clearly Parliament’s view that there is a public interest in allowing some state-funded schools to be designated as having a religious character and in allowing those schools to make certain choices about their admission arrangements.

209. That may reflect the relevant history as summarised in Mr Rosenberg’s evidence. The CofE has been involved in the provision of education in England since the National Society for Promoting Religious Education was set up in 1811 (it still exists and has influence today, under the name of the Church of England Education Office). As the established church, the CofE had a considerable influence over the growth of universal education in England. By 1861, I am told, there were 12,000 schools said to be “in union” with the National Society. Free primary education was introduced by the Education Act 1870, which led to many CofE schools receiving state funding. The Education Act 1944 introduced free secondary education and, for the first time, created the dual system of state schools with and without a religious character. Today there are 4,630 CofE schools in England, educating approximately a million children. Following the Academies Act 2010 , the state sector now contains 1,540 CofE academies (who are responsible for their own admission arrangements). The remainder of the 4,630 are voluntary controlled schools (where the local authority is responsible for the admission arrangements), and voluntary aided schools or (in 24 cases) CofE foundation schools (where the governing body is responsible for the admission arrangements). Many schools with a religious character are very successful. Penny Roberts MBE, the Diocesan Director of Education for the LDBS, in her evidence referred me to statistics indicating the high standards achieved by pupils in CofE schools in the Diocese of London compared with those in other schools.

210. With that introduction, I turn to the legal test for justification. All parties agree that the correct approach is to ask the four questions identified in Bank Mellat .

211. Legitimate aim and rational connection are distinct elements but points were made in argument which are relevant to both and they can be taken together.

212. The Trust has stated that the aim of the measure is to “ensure that the Anglican character and ethos of the school is preserved”.

213. The OSA found that this is a legitimate aim.

214. The Claimants accept that preserving the religious character and ethos of a school is, in principle, a legitimate aim underpinning faith-based oversubscription criteria. However, they contend that there must be a school-specific assessment and that in the case of Twyford, the aim does not “correspond to a real need” ( JFS per Lord Mance at [97]). As I have said, Mr Desai argues that this is apparent from the fact that the Trust’s other designated CofE schools have been equally successful in maintaining the shared Anglican character and ethos without faith-based oversubscription criteria.

215. Mr Desai points out that although the Trust identifies a need to meet “demand” for an Anglican school from CofE families, many of whom are located relatively far from the school, on proper analysis this does not really go beyond an assertion that Twyford should continue doing what it has always done. It is not a reason why accommodating “demand” from different people would harm the school’s character and ethos.

216. He therefore asks rhetorically, why does Twyford need the CofE criterion when its sister schools do not?

217. I have referred above to Mr Oldham’s submissions based on the statutory framework and on the Trust’s articles of association and Scheme of Delegation, and to his reliance on witness evidence about the school’s distinctive Christian vision or ethos (though he does not accept that the Trust need go so far as proving that fact).

218. In my judgment it is proper to give weight to Dame Alice’s evidence about the school’s role in relation to the Trust’s schools as a whole, modelling the Anglican worship practice which is then shared with the others. There is no sound basis for the Court to go behind that evidence and to question even the practical, let alone the spiritual, considerations which underpin it, a point to which I return when considering the third Bank Mellat question below.

219. It seems to me logical for the school to promote that aim by admitting what, in all likelihood, will be a larger proportion of pupils who are better placed to form a distinctively Anglican community because they belong to Anglican congregations.

220. In the faith school system approved by Parliament, the aim of preserving a particular Anglican ethos is legitimate, and the oversubscription criterion is rationally connected with it.

221. The third and fourth questions, of least intrusive measure and fair balance, also have a tendency to overlap or at least to involve consideration of the same facts, as Lord Sumption recognised in Bank Mellat at [20].

222. I begin by observing that the Court is not well placed to apply the third part of the Bank Mellat test in a case of this kind. I bear in mind the comments of Munby J in JFS at first instance, at [107]-[108], where he noted that “the civil courts must be slow to interfere in the life of any religious minority or to become involved in adjudicating on purely religious issues” although reliance on religious belief “can never of itself immunise the believer from the reach of the secular law”. It is necessary to apply appropriate scrutiny to the assertions of those with responsibility for the school about the need for this oversubscription criterion, as opposed to some less stringent criterion, in order to pursue its aim, but if I accept (as I do) that their views and beliefs are genuine, I must be very cautious before substituting other views or beliefs.

223. I also accept Mr Oldham’s submission that the real question in this part of the test is whether the limitation is a reasonable one, having regard to the degree of intrusiveness and the availability of any alternatives, and is not whether any less intrusive measure could be devised. See Bank Mellat at [75] per Lord Reed, with whom the other Justices agreed on the principles to be applied.

224. It is also essential to remember that the statutory reason for subjecting the criterion to the proportionality test is the fact that it is indirectly discriminatory in relation to race. The fact that, racial considerations apart, it disadvantages those who are not CofE attenders is not relevant.

225. The question therefore is not whether the school’s legitimate aim would have been defeated if, in the year in question, places had been made available to DGT or to some other members of his church or another church. Rather, it is whether the fact that the criterion advantages a constituency with one racial profile and disadvantages a constituency with a different racial profile makes it unreasonable for the school to pursue its aim by prioritising CofE attenders to the extent that it does.

226. On this point the OSA decision said: “65. The Anglican point is the only provision within the oversubscription criteria which specifically reflects the designation of the school as Church of England. It is expressed in the broadest terms, ‘attendance at services of the Church of England (or churches in communion therewith)’, which still maintain a direct connection with the school’s designation.

66. The Objector suggests a number of alternative measures to achieve the same objective. I have found that the aim, specifically to preserve the Anglican ethos and character of the school is a legitimate aim. Having no faith based criteria would not achieve that aim for this school, nor would having the existing faith based criteria without the additional Anglican Point.

67. The Objector refers to the Diocesan guidance. The Trust is required by the Code to have regard to that guidance when formulating its admission arrangements. The guidance ‘strongly recommends’ that admission authorities should ‘Maintain an equal 50/50 split between foundation and open places, to facilitate inclusion and serving the common good of their local community’ and notes that for new academies with a religious character ‘at least 50% of places are to be allocated without reference to faith’. The proportion of foundation places at the school exceeds 50 per cent. However, I am satisfied that the circumstances of the school, as a long established school with a Church of England character, are in keeping with a higher percentage of foundation places. I also note that a reduction in the percentage of foundation places would not decrease the effect of the Anglican Point on faith based places and would not necessarily benefit any applicant who is afforded priority as a regular attendee at a church such as the Eritrean Orthodox Church.

68. I do not find that there is a less intrusive measure could have been used without unacceptably compromising the achievement of the objective.”

227. As well as giving appropriate weight to the adjudicator’s specialist expertise, I find his reasoning persuasive. The Claimants have made much of the school’s departure from the recommendation in the Diocesan guidance. However, it is only a recommendation. And, the recommendation concerns the number or proportion of foundation places but does not concern the nature of the criteria used to decide who obtains the foundation places. But this claim, it seems to me, must focus on the latter rather than the former, because the Claimants are contending for the use of a criterion which would have accommodated DGT but which was still a faith-based criterion.

228. In considering what is reasonable, I again give significant weight to the fact that Parliament has decided to permit the use of faith-based criteria, even though such criteria in general will often be indirectly discriminatory in relation to race.

229. That being so, I do not accept Mr Desai’s submission that the criterion cannot be justified purely because the Trust has never carried out any assessment of its racial impact and therefore there is no evidence that that impact is outweighed by its benefits.

230. Take the example, identified by the OSA at paragraph 38 of his decision, of a school with a Muslim religious character applying a criterion of Mosque attendance which would almost certainly disadvantage white British applicants. I do not believe that Parliament intended that school to carry out research on the racial impact of its criterion and then to interrogate itself on whether it still wished to apply it. In the present case the racial impact is less obvious because both the advantaged and disadvantaged groups are racially diverse, although their racial profiles differ. That if anything should make the criterion easier to justify. It is not a reason why the Trust should have to dig for elusive information as a condition of persuading the Court that its measure strikes a fair balance.

231. In this regard the case is different from JFS because the offending admissions criterion in that case was quite different. In JFS the school’s stated aim, as summarised at first instance by Munby J at [192], was “to educate those who, in the eyes of the [Office of the Chief Rabbi] are Jewish, irrespective of their religious beliefs, practices or observances , in a school whose culture and ethos is that of Orthodox Judaism” (emphasis added). The claim succeeded in the Supreme Court because the oversubscription criterion, of matrilineal Jewish descent or conversion in accordance with Orthodox Judaism, was found to constitute direct discrimination on ground of ethnic origins. Some of the Justices expressed opinions, obiter, on the issue of indirect discrimination which would have been live if there had been no direct discrimination. Lord Mance, with whom Lords Kerr and Clarke agreed, said that he would have found that the criterion constituted indirect discrimination which was not justified on the evidence before the Court. He referred at [100] to an absence of any weighing by the school of any need to pursue its aim against the seriousness of the detriment to the disadvantaged group, but also to the absence of any “information about the extent to which the school succeeds in its stated aim of inculcating Orthodox Judaism in the minds and habits not only of those who already practise it, but also those who gain admission as Orthodox Jews in the eyes of Orthodox Judaism”, who “may not on entry practise or have any interest practising Orthodox Judaism”. Lord Hope, with whom Lord Walker agreed, said at [214] that it was not for the Court to search for a justification for the school’s policy and that, never having asked itself the question, the school could not demonstrate that its policy was proportionate.

232. That analysis is made harder to apply by the fact that, in context, it depends on the rejected theory that the JFS criterion did not directly discriminate on grounds of ethnic origin, even though the direct discrimination claim succeeded because the criterion did precisely that. Its disparate impact on those who failed what was in fact an ethnic test was obvious and absolute. It favoured some Jews over other Jews on the basis of their parentage, not their religious practice. For those reasons it obviously risked having a divisive and invidious effect within Jewish communities. That was what, in a hypothetical consideration of indirect discrimination, would have had to be subjected to the proportionality test. That is very different from the criterion of religious practice in the present case, where an Anglican religious school in the pursuit of an Anglican religious ethos has favoured Anglican churchgoers. The incidental racial impact in the present case is very different from, and much more nuanced than, the ethnic impact in JFS .

233. I have nevertheless had careful regard to what the Justices said about the difficulty of justifying a criterion with a discriminatory effect without adducing evidence of prior consideration of that effect. In this case, however, by contrast with JFS , there is evidence of the Trust’s consideration of the oversubscription criteria of its schools as a whole and of its choice to use different criteria at different schools having regard to the needs of the community. There is also the evidence to which I have referred of the school’s success in pursuing its well defined legitimate aim. In both of those regards the present case is very different from JFS .

234. Having considered all of these factors, I am not persuaded to reject the judgment of Dame Alice Hudson and her colleagues as to the reasonable need for the oversubscription criteria, not just at Twyford but at the Trust’s four schools when viewed in combination. While not using faith-based oversubscription criteria at the other three schools, they wished Twyford to be a “model of Anglican practice”, as it is described in the November 2024 SIAMS report. On the one hand, it is logical and reasonable for the school’s aim to be pursued by admitting practising Anglicans. On the other, there is no evidential basis for me to decide that that aim could reasonably be achieved without awarding the CofE Extra Point.

235. In those circumstances I am also not persuaded that the importance of the objective is outweighed by the racial impact, which is (as I have said) hard to quantify but is of an incidental and nuanced nature.

236. For those reasons I find the third and fourth of the Bank Mellat requirements to be satisfied.

237. In reaching that conclusion I have neither disregarded nor rejected the submissions of Mr Desai about the corrosive effect on society of race discrimination and the importance of rooting it out. However, claims of indirect discrimination require close analysis because they span a complete spectrum. In some cases a PCP with a disparate impact on those with a protected characteristic will be a wolf in sheep’s clothing, a disguised means of imposing a prejudice such as racism (or one of the others identified by section 4 of the EA). In some, the PCP may instead be well intentioned but nevertheless perpetuate disadvantage on grounds of race (or another protected characteristic) in a way or to an extent which must be corrected. But there will also be other cases in which the PCP is entirely legitimate and its impact unavoidable and acceptable. Issue 3: the public sector equality duty The parties’ submissions

238. Mr Desai submitted that the Trust was, and is, in breach of the duty imposed by EA section 149 in its exercise of the public functions of adopting, maintaining and applying its admission arrangements. He prays in aid the relevant principles as they were explained by McCombe J in Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 , [2014] EqLR 60 at [25]-[26], as summarised in R (Bridges) v Chief Constable of South Wales Police [2020] 1 WLR 5037 at [175]: “(1) The PSED must be fulfilled before and at the time when a particular policy is being considered. (2) The duty must be exercised in substance, with rigour, and with an open mind. It is not a question of ticking boxes. (3) The duty is non-delegable. (4) The duty is a continuing one. (5) If the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consultation with appropriate groups is required. (6) Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then it is for the decisionmaker to decide how much weight should be given to the various factors informing the decision.”

239. In the OSA decision at [74], the adjudicator considered it understandable that, when formulating its admission arrangements, the Trust did not consider whether race discrimination might arise, adding that, so far as the adjudicator was aware, “the potential discriminatory effect of faith oversubscription criteria on grounds of race is not an issue which has thus far generated any significant level of public debate or previously been considered by the Schools Adjudicator or by the courts” and that the issue is not mentioned in the Diocesan guidance or the Code.

240. In her evidence for the Trust, Dame Alice Hudson said (paragraph 27) that Twyford’s oversubscription criteria were “thoroughly reviewed” in 2013 and were found to represent the Trust’s purpose. At that time the Trust had two schools and planned to open two more “with an open admissions policy to serve local communities whilst retaining the distinctive character modelled by Twyford”. Those “open” criteria were applied to Ada Lovelace when it opened in 2018 and will also be applied to Ealing Fields High School when it receives its designation.

241. Dame Alice also explained that race/ethnicity data are gathered from successful applicants (though they need not provide the information if they prefer not to), reflecting data collection requirements of the Department for Education. Such data are not collected from applicants because of the provisions of the Code referred to above, such matters as race having no bearing on the application of the school’s oversubscription criteria.

242. Mr Desai submitted that there is no evidence of the Trust taking any steps at any relevant time to have regard to the objectives of eliminating unlawful race discrimination and of advancing equality of opportunity and fostering good relations in respect of race and religion or belief. The Trust did not even identify the issue of disparate racial impact when it formulated the oversubscription criteria and, whether or not it is right that the provisions of the Code prevented it from asking applicants to fill in an equality monitoring form, did not gather or consider publicly available information such as that which Mr Rosenberg has placed before the Court and to which I have referred above.

243. Referring to the OSA’s conclusion that a lack of attention to the race equality implications of the criteria was “understandable”, Mr Desai suggested that there may be a legal blind spot in the education sector about the importance and the requirements of the PSED.

244. In response, Mr Oldham emphasizes the highly fact-sensitive nature of the requirement to have “due regard” in any given case, a point recognised in Hotak v Southwark LBC [2016] AC 811 at [74] by Lord Neuberger, who also recognised the important point that the PSED is a duty to have regard, not a duty to achieve any of the statutory objectives.

245. Mr Oldham submitted that when the Court decides what regard to equality considerations was “due” when the admission arrangements were made or maintained, I should take note of the absence of any guidance or any case law on the application of the PSED in this context.

246. He also pointed out that, depending on the facts, “due regard” may mean no regard: see R (Bailey) v London Borough of Brent [2011] EWCA Civ 1586 , [2012] EqLR 168 at [91] per Davis LJ (with whom Richards LJ agreed).

247. Mr Oldham further contended that since a degree of disparate impact on different racial groups is an almost inevitable consequence of faith-based oversubscription criteria, and since Parliament permits such criteria to be adopted, the mere fact that there will be such a disparate impact is not something to which “regard” must be had under section 149 . And, plainly, the duty cannot have required the Trust to obtain information from applicants about their race which the Code prevents it from obtaining.

248. The Trust, meanwhile, is conscious of the racial and ethnic breakdown of the pupils at its schools. It maintains an Equality and Diversity Objectives and Action Plan and an Equality Policy which are regularly updated. The Equality Policy, as last updated in 2023, lists the “key policies with an Equality and Diversity impact”. The first item in the list reads: “The Admissions Policy (ensures that different groups are treated equally in the admissions process – except as permitted by the Equalities Act [sic] exemption).”

249. In light of that evidence and the fact, not contested in evidence, that the school is a thriving multi-racial community, Mr Oldham submitted that the Trust has not failed to have the regard which was “due” in the circumstances.

250. In the alternative, Mr Oldham submitted that relief should be denied under section 31 (2A) of the Senior Courts Act 1981 because the evidence shows that the criterion is of considerable importance to the school, such that the Trust would have adopted it even if it had had specific regard to its disparate impact on racial groups.

251. In response to that last point, Mr Desai submitted that, in the absence of proper evidence of what would have happened if the PSED had been properly fulfilled, the Court should not refuse relief under section 31 (2A). He cites Lewis LJ in R (Greenfields (IOW) Limited) v Isle of Wight Council [2025] EWCA Civ 488 at [73] (on admittedly different facts): “If the court cannot tell how the decision-maker would have approached matters, or what decision it would have reached, if it had not made the error in question, the requirements of section 31 (2A) are unlikely to be satisfied.” Discussion and conclusion

252. It is not in dispute that section 149 of the EA applies to decisions relating to admission arrangements.

253. As I have said, Mr Desai does not argue that the Trust was required to have regard to the objective of eliminating unlawful discrimination on grounds of religion or belief. His reliance on section 149 concerns the objectives of eliminating unlawful race discrimination, and those of advancing equality of opportunity and fostering good relations in respect of race and religion or belief.

254. The school’s Equality Policy, quoted above, shows that the Trust is and was aware of the statutory requirements for equal treatment of different groups in the admission process.

255. 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.

256. Moreover, I am sure that the Trust at all times was aware of the 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.

257. 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. 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, I doubt that “due regard” requires much if anything beyond an awareness of the impact on those of a different, or no, religion or belief. The Claimants have not identified any steps which, in my judgment, should have been taken and were not taken in these respects.

258. I bear in mind also that the same standard applies to the Trust as would apply to (by way of further example) Muslim, Jewish or Hindu schools whose oversubscription criteria favoured Muslim, Jewish or Hindu applicants.

259. Although the question of whether there was a failure to have due regard to those objectives in relation to race is slightly less straightforward, Parliamentary approval of faith schools and of faith-based oversubscription criteria may be a less decisive factor but it is still an important one. That is because, as I have said, such criteria in general are likely to have (and in the cases of some faiths will certainly or almost certainly have) a disparate racial impact.

260. Moreover, in a case such as the present one, that unsurprising racial impact will be only a small part of the wider effect on the community of applying faith-based oversubscription criteria. The much larger impact will be in relation to religion or belief. Given that such criteria cannot amount to unlawful discrimination in relation to religion or belief, and given my conclusion about the limited effect of section 149 regarding the need to advance equality of opportunity and the need to foster good relations in relation to religion or belief when adopting such criteria, it would be surprising if section 149 nevertheless necessitated a much more searching inquiry into the much smaller impact relating to race.

261. Meanwhile, section 149 does not set a test of granularity. Authorities must have the necessary due regard in the exercise of their functions, but that obviously does not mean that that “regard” must be made manifest in respect of every detail of every policy. It is also left to each authority to decide, in each case, how to exercise the duty.

262. That being so, I am not satisfied that a breach of section 149 must be found if, when the requirements for the CofE Extra Point were defined (and thereafter), the Trust did not ask itself what if any effect those specific requirements might have on the three section 149 objectives in relation to race.

263. Instead, the question is whether due regard was had to those objectives when the Trust exercised its functions in relation to the admission arrangements, considered as a whole.

264. The evidence shows that the Trust keeps itself aware of the make-up of the diverse community which it serves and of the racial or ethnic profile of its pupils. It also shows that the Trust maintains different oversubscription criteria at Twyford and at the other three schools, with the express aim of balancing the needs of different members of the community. And, the Trust’s Equality Policy reminds it of the need for equal treatment in its admission arrangements.

265. On the basis of that evidence, and 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. Issue 4(a): section 31 (2A)

266. If I am wrong in that last conclusion, it would be necessary to determine the issue canvassed in submissions of whether relief should nevertheless be refused under section 31 (2A) of the Senior Courts Act 1981 , which provides so far as material: “(2A) The High Court— (a) must refuse to grant relief on an application for judicial review … if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”

267. It is common ground that “highly likely” imposes a high threshold.

268. Nevertheless, I am satisfied that if, on enquiry pursuant to section 149 , it had come to the Trust’s attention that, for the reasons explained at paragraphs 199-204 above, those who qualified for the Extra Point were more likely to be white and those who scored only 20 points were more likely to be non-white, it is highly likely that the Trust would not have changed its oversubscription criteria.

269. I reach that conclusion because of (1) the strength of the Trust’s commitment to the Anglican ethos and its choice to give Twyford a leadership role in that regard, (2) the fact that for faith-based criteria to have some disparate racial impact is unsurprising, (3) the impossibility of measuring the extent of the disparate impact and (4) the factors which mitigate the impact i.e. the World Faith places and the admission of those who attend other churches in communion with the CofE.

270. I am not deterred from that conclusion by an absence of express evidence to prove what the Trust would have done in that hypothetical situation. Section 31 (2A) is cited in many cases. In some, it will be reasonable to expect evidence to show what would have happened, but all will depend on the facts. In the present case, if the Trust had simply stated what it would have done, then it would no doubt have been submitted that the statement was self-serving. There is no other factual enquiry, relevant to this issue, which I consider should have been made but has not been made. Disposal

271. For the reasons given above, 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.