Faith-based oversubscription criteria

R (CKT and DGT) v Twyford Church of England Academies Trust, and the Office of the Schools Adjudicator [2025] EWHC 2396 (Admin)

Context

Schools designated as having a religious character (faith schools) are permitted to allocate places by reference to faith when oversubscribed[1]. The school at the centre of this recent case had allocated 150 out of 190 of its Year 7 places as “Christian foundation places” when oversubscribed. If there were more than 150 applicants for these places, a points based system was used to determine who was offered a place. This included a “CofE Extra Point” for applicants whose family’s main place of worship is at a “CofE church or Churches in Communion with the CofE”. This definition excludes certain types of Christian Church, meaning that, for example, whilst an applicant whose family worships at a Roman Catholic or Orthodox Church might qualify for a foundation place, they cannot be awarded the CofE Extra Point and are therefore less likely to obtain a place. The Claimant is a mother of three whose family worship at the Eritrean Orthodox Church (EOC). The EOC does not qualify for the CofE Extra Point. The vast majority of the EOC congregation is non-white. The Claimant’s son applied for a place at the school and was unsuccessful.

The claims

The Claimant brought two claims, (1) against the trust and (2) against the Office of the Schools Adjudicator. Both claims alleged indirect race discrimination stemming from the effect of the CofE Extra Point on the basis that it disproportionately disadvantaged non-white Christians. The claim against the trust also alleged breach of the trust’s public sector equality duty (“PSED”). The PSED is the duty upon public bodies to have due regard to the need to: eliminate discrimination and other conduct prohibited by the Equality Act; advance equality of opportunity; and foster good relations between those who share a relevant protected characteristic (such as race) and those who do not. 

Key considerations

• The Equality Act 2010 prohibits indirect discrimination on the basis of race unless it is a proportionate means of achieving a legitimate aim.
• The judge accepted that the CofE Extra Point put non-white Christians at a disadvantage though specific data showing this was not available. Therefore, it was necessary to determine that it was a proportionate means of achieving a legitimate aim.
• The trust’s position was that the aim of the CofE Extra Point was to “ensure that the Anglican character and ethos of the school is preserved”. This was accepted to be a legitimate aim.
• The Claimant argued that it was not a proportionate means of achieving the aim, noting that the foundation places available already went above the London Diocesan Board for Schools’ recommendation of a 50:50 split between foundation places and open places and that other schools within the trust did not have the CofE Extra Point in their admission arrangements.
• Both the trust and the Secretary of State for Education (who intervened as an interested party) argued that weight needed to be given to the policy rationale for permitting faith schools to have faith-based oversubscription criteria. The judgment notes “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”.
• Evidence relating to the trust-wide approach, overall student population and history and the role that the particular school takes in leading and setting the Anglican ethos/values of all schools within the trust was significant. 

Conclusion 

Both claims were dismissed. The judge gave weight to the policy intention behind permitting faith-based oversubscription criteria and accepted that the trust had considered the community that it serves and that the school had a “leadership role” within the trust in relation to its strong Anglican ethos.

Whilst this case supports faith-based oversubscription criteria, it highlights the need for trusts and schools to be aware of and consider the wider implications of their admission arrangements within the context of their own particular community and trust, taking into account the PSED when they do and ensuring that admissions and equality policies are compliant. No doubt faith-based oversubscription criteria will continue to be under the spotlight in the context of ongoing debate in the House of Lords about whether such criteria should be capped at 50% for all new schools in the forthcoming Children’s Wellbeing and Schools Bill.

Laura Berman and Michael Brotherton are Partners at Stone King.