Key takeaways
Faith-based admissions criteria is a legitimate aim
Where Parliament has expressly authorised faith-based admissions through legislation, courts will give significant weight to that legislation.
Proportionality is not a least-restrictive-means test
Schools need not adopt the least intrusive measure, only one that reasonably and proportionately achieves a legitimate aim.
Wider admissions options can support proportionality
Courts may consider alternative school provision within a trust when assessing whether admissions arrangements strike a fair balance between competing interests.
The Court of Appeal recently handed down Judgment in the case of R. (on the application of CKT) v Twyford Church of England Academies Trust [2026] EWCA Civ 1364. The Court upheld the lawfulness of a Church of England school's faith-based oversubscription criteria and provided useful commentary on how the Bank Mellat test on proportionality should be applied in indirect discrimination cases.
Background
The case concerned admissions to Twyford School, a Church of England school offering 150 foundation places reserved for applicants meeting faith-based admissions criteria. Under the school's oversubscription arrangements, applicants could receive 20 points where a parent or carer regularly attended a Christian place of worship. A further point was awarded where the family's principal place of worship was a Church of England church. In practice, successful applicants generally required the full 21 points to secure a place.
The claimants belonged to the Eritrean Orthodox Church. Although they satisfied the requirement for regular Christian worship and received 20 points, they did not receive the additional point awarded to families whose primary place of worship was a Church of England church. Their son was therefore unsuccessful in obtaining a place and a challenge was brought on the basis that the admissions arrangements amounted to unlawful indirect discrimination. Whilst accepting an indirect discrimination claim could be made, the Court of Appeal turned to proportionality of the admission arrangements, and applied the test established in Bank Mellat v HM Treasury (No. 2).
Bank Mellat Test
The case established a four-stage test for assessing proportionality:
Whether the objective being pursued is sufficiently important,
Whether the measure adopted is rationally connected to that objective,
Whether a less intrusive measure could have achieved the same aim, and
Whether the impact on the affected individuals is outweighed by the importance of the objective pursued.
The final stage requires the court to determine whether a fair balance has been struck between competing interests.
The Court's decision
The Court of Appeal upheld the High Court's conclusion that the admissions arrangements were lawful and that the proportionality analysis in Bank Mellat had been correctly applied.
The Court emphasised that Parliament has expressly legislated to permit schools with a religious character and to allow faith-based oversubscription criteria. It also noted that paragraph 5 of Schedule 11 to the Equality Act 2010 disapplies certain prohibitions on discrimination in admission arrangements relating to religion or belief. Against that legislative backdrop, the Court held that there was a legitimate objective in preserving the ethos of faith schools, satisfying the first limb of the Bank Mellat test.
The Court further accepted that the admissions arrangements were rationally connected to the Trust's objective. It considered it logical that a school seeking to preserve an Anglican ethos would allocate places in a way that increased the proportion of Anglican pupils attending the school.
The Court also provided important guidance on the third limb of the Bank Mellat test, namely whether a less intrusive measure could have been used. The Court observed that the legislation does not require that "the" least intrusive measure available, rather the question to consider is whether the measure adopted reasonably pursues the legitimate aim without imposing a disproportionate burden on others.
In considering the third and fourth limbs, the Court held that judges should give significant weight to Parliament's intentions, which in this case was reflected in the legislation to permit both faith schools and faith-based admissions criteria. It also took into account the wider provision available within the Trust's family of schools, including schools that did not apply faith-based oversubscription criteria in the same way. Those factors supported the conclusion that a fair balance had been struck between the interests of the claimants and the legitimate objectives being pursued.
Key takeaways for schools
This decision will be welcomed by faith schools and academy trusts. It confirms that, where Parliament has expressly authorised a particular educational model, that statutory framework will carry significant weight when courts assess proportionality in indirect discrimination claims.
The judgment also serves as a reminder that the proportionality exercise is not concerned with identifying the least restrictive conceivable option. Instead, the question is whether the measure adopted is a reasonable and proportionate means of achieving a legitimate aim. In the context of faith-based admissions arrangements, courts are likely to afford schools a degree of latitude in determining how best to preserve and promote their religious ethos, particularly where those arrangements reflect choices that Parliament has expressly endorsed.
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