Court of Appeal rejects legal challenge over faith-based oversubscription criteria

In CKT & Anor, R (On the Application Of) v Twyford Church of England Academies Trust & Ors [2026] EWCA Civ 1364, Lord Justice Lewis, with whom Lord Justice Baker and Lord Justice Butcher agreed, held that the additional point was a “proportionate means of achieving the legitimate aim” of preserving the Anglican character and ethos of Twyford Church of England High School.

The appeals concerned the allocation of 150 foundation (Christian) places at Twyford School, which is operated by the Twyford Church of England Academies Trust.

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

Under the admission arrangements at Twyford, 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 criterion under challenge in the case involved the award of an additional one point (the “CofE Extra Point” or the “Extra Point”) to certain applicants - where the family’s main place of worship was a Church of England church, or a church in communion with it.

In recent years, most successful applicants needed to score 21 points to secure a foundation place.

The claimants, CKT and her son, regularly attended an Eritrean Orthodox Church in London.

They were awarded 20 points but did not qualify for the additional point because their main place of worship was not a church in communion with the Church of England.

CKT’s son was consequently refused a place for the 2024-2025 academic year.

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

The claimants brought judicial review proceedings, arguing that a faith-based oversubscription criterion within the admission arrangements of Twyford Church of England High School was “indirectly discriminatory” in relation to the protected characteristic of race, contrary to the prohibition on discrimination in section 85(1)(a) and (c) of the Equality Act 2010 (“the EA”).

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

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

The High Court dismissed the claims.

CKT and her son appealed on four grounds, namely that the judge erred in:

1. his interpretation of the relevance and effect of statutory provisions permitting faith-based oversubscription criteria, in particular the religion or belief discrimination exception in paragraph 5 of Schedule 11 to the 2010 Act, when considering the justification for indirect race discrimination under section 19(2)(d) of the 2010 Act and/or on the requirements of the duty imposed by section 149 of the 2010 Act;
2. his interpretation of the requirements of section 149 of the 2010 Act in the present context and in concluding that the duty was discharged on the material before him (a ground relevant only to the claim against the Trust);
3. finding that the requirements of section 31(2A) of the Senior Courts Act 1981("the 1981 Act") were satisfied and so would have justified the refusal of a remedy even if there had been a breach of section 149 of the 2010 Act (relevant only to the claim against the Trust); and
4. his assessment of proportionality pursuant to section 19(2)(d) of the 2010 Act.

The Secretary of State for Education filed a respondent's notice seeking to uphold the order of the judge on the different ground or additional ground that:

"Paragraph 5 of Schedule 11 to the Equality Act 2010 creates an exception to the prohibition in section 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."

The Court of Appeal rejected the Secretary of State for Education’s argument that paragraph 5 of Schedule 11 to the Equality Act 2010 excluded claims of indirect race discrimination arising from faith-based oversubscription criteria.

Lord Justice Lewis said: “The prohibition on indirect race discrimination was initially contained in section 1 of the Race Relations Act 1976. Section 49 of the Equality Act 2006 (the 2006 Act) introduced a prohibition on discrimination in the allocation of school places.

“Discrimination was defined (in section 45) as direct discrimination (i.e. less favourable treatment on the grounds of religion or belief) or indirect discrimination (i.e. by applying a provision, criterion or practice [PCP] which put persons of the same religion as the putative victim at a particular disadvantage). Section 50 of the 2006 Act provided that the relevant parts of section 49 did not apply in relation to schools designated under section 69(3) of the 1998 Act as having a religious character.

“It is clear that section 50 of the 2006 Act only exempted religion or belief-related discrimination. That was all that sections 49 and 50 of the 2006 Act were concerned with. Section 50 did not affect the position in relation to race discrimination (even if arising out of faith-based discrimination), as race discrimination was dealt with in the 1976 Act and there was no corresponding exception in the 1976 Act in relation to schools admission.”

He continued: “The 2010 Act was, as the preamble indicates, an act which, as one of its objectives, intended "to reform and harmonise equality law, and restate the greater part of the enactments relating to discrimination and harassment". If the Secretary of State were correct in her interpretation of paragraph 5 of Schedule 11 to the 2010 Act, that paragraph would have effected what might well be described as a significant, perhaps radical, change from the previous legislation in that race discrimination arising out of the application of faith-based oversubscription criteria for schools designated as having a religious character would be exempt from the scope of the 2010 Act.

“Admissions authorities would no longer have to demonstrate that an indirect racial impact pursued a legitimate aim and was a proportionate means of achieving such an aim. There is nothing in the words used, or the structure of the 2010 Act, to suggest that that was the intention of Parliament.”

The central question considered by the court was whether the additional point was a proportionate means of achieving a legitimate aim.

Considering this point, Lord Justice Lewis said: “Parliament has provided for a system of designation of schools as schools having a religious character. Further, Parliament permits admissions authorities to use oversubscription criteria which allocate places on the basis of religion or belief. That is why paragraph 5 of Schedule 11 to the 2010 Act provides that the prohibition on discrimination in admission arrangements does not apply to religion or belief. That reflects an acceptance by Parliament that there is a public interest in having religious, or faith-based, schools. That is relevant in assessing whether oversubscription criteria seek to achieve a legitimate aim. It is also relevant to the overall balancing exercise inherent in the assessment of proportionality. Parliament has recognised that there is an important public interest in providing for religious schools. The importance attached to maintaining faith-based schools may be a factor which is relevant to the question of proportionality and the issues identified in Bank Mellat.

“Against that background, the judge was correct, therefore, in concluding that "the aim of preserving a particular Anglican ethos is legitimate."

Lord Justice Lewis continued: “The judgment, read fairly, and as a whole, does not demonstrate any error of law. The judge properly directed himself as to how he could assess the proportionality of the PCP. He considered, and accepted, the evidence of the Trust. He came to conclusions that he could reach on the evidence before him. He was entitled to regard the statutory framework providing for the designation of schools as having a particular religious character, and permitting faith-based oversubscription criteria, as reflecting a recognition by Parliament that there was a high public interest in preserving faith schools. That was relevant to the assessment of whether the preservation of an Anglican ethos for such a school was a legitimate aim.

“The public interest in preserving faith-based schools was also a relevant factor to which the judge could give significant weight when assessing whether the PCP in this case was a proportionate means of achieving a legitimate aim.”

Turning to the question of whether the Trust had complied with its duty under section 149 of the 2010 Act to have due regard to certain specified equality matters, the Court of Appeal upheld the finding that the Trust had complied with section 149 of the Equality Act 2010.

Lord Justice Lewis said: “It is inherent in my judgment, given the context and the nature of the decision, that the Trust knew of the potential impact of its decision to make, and maintain, these admission arrangements on persons of other races. It is clear that it paid due regard to that. It wished to achieve what Parliament recognises is a legitimate aim, namely the preservation of religious or faith-based schools. It sought to achieve that by the arrangements it adopted for Twyford School, and considered that the impact on people of other races would be addressed by places at other Trust schools. That, to my mind, does demonstrate that it was paying due regard to the racial impact of the admission arrangements for Twyford School, and the matters set out in section 149(1)(a) to (c). For those reasons, while the judge's reasons could have been more fully expressed, I consider that the judge's conclusion at paragraph 265 of his judgment, that there was no breach of section 149, was one that he was entitled to reach.”

The appeals were dismissed.

Lord Justice Butcher and Lord Justice Baker agreed.

Lottie Winson