Administrative Court gives important ruling on religious academy schools and the scope of the public sector equality duty

Judgment has been handed down in Khalsa Academies Trust Ltd v Secretary of State for Education [2021] EWHC 2660 (Admin), an important case in relation to how the Secretary of State deals with religious academy schools, and which gave guidance on the Court’s approach to PSED challenges. In August 2019, six serious safeguarding concerns arose at Khalsa Secondary Academy, which is part of the KAT multi academy trust. In December 2019, Ofsted conducted an inspection and rated the school ‘Inadequate’ and ‘requiring special measures’. Safeguarding was ‘not effective’. In February 2020, the Secretary of State issued a termination warning notice (“TWN”), which is a warning that the Secretary of State is considering terminating the Academy’s funding agreement. Thereafter he received representations from Khalsa Academies Trust (“KAT”) and had communication with the Network of Sikh Organisations (“NSO”). It did not consult with the NSO before issuing the TWN. On 4 June 2020, the Secretary of State terminated KAT’s funding agreement; and following further representations from KAT, reconsidered and maintained the termination on 3 July 2020. The Secretary of State has a ‘Memorandum of Understanding’ with each of the Church of England Education Office and the Catholic Education Service. These MoUs deal with how the Secretary of State will acts relation to underperforming Church and Catholic academies respectively. The Secretary of State does not have an MoU with the NSO, which is the recognised religious body for most Sikh faith schools. His position is that the support for such schools applies in the same way as for other schools, but there was no need for a formal document for various reasons, including the fact there are only 11 such schools compared to 6,700 Church schools. The Court found as follows:

• It was agreed by the parties that the spirit of the Church MoUs would apply to Sikh schools and the NSO (paragraphs 74-77). The spirit of those MoUs was that there was a procedural obligation in relation to engagement and consultation with the religious body to allow action to be taken as necessary to avoid a TN being issued, but consultation was not a requirement prior to the TWN (paragraphs 81-82). As such there was no breach on the facts of this case. However, and in any event, the consultation after the TWN meant any failure to consult before would not have made a material difference (paragraph 92). There was also no discrimination (paragraphs 95-107).
• There are differences in context between Church schools and Sikh academies relevant to how the MoUs apply, such as the difference in the number of Church school compared with Sikh schools, there being only a small number of schools which the NSO supports; Church education departments have expertise and experience in taking remedial action; and the fact the Church bodies have extensive departments involved in and advising the large number of Church schools (paragraphs 83).
• As to the PSED, the duty of inquiry is subject to rationality review (paragraphs 115-118). The Court rejected KAT’s assertion that the question of whether the decision maker armed himself with all relevant evidence demanded a higher degree of scrutiny than rationality review. On the facts of this case, there was no breach. Whilst KAT alleged that there was a campaign against it based on religion, the warnings it gave the Secretary of State were “vague and diffuse” and there was “scant, if any, evidence”. The Secretary of State took a rational approach to the PSED duty (paragraph 119-129).
• The decision overall was one which was rational in light of all the circumstances (paragraphs 137-160).

The judgment is available here. Leon Glenister appeared for the Secretary of State for Education, led by Jonathan Auburn QC.