The Queen (on the Application of Cornerstone (North East) Adoption and Fostering Services Ltd) v HM Chief Inspector of Education, Children's Services and Skills (Ofsted)

JurisdictionEngland & Wales
JudgeLord Justice Peter Jackson,Lady Justice Asplin,Lady Justice Nicola Davies
Judgment Date24 September 2021
Neutral Citation[2021] EWCA Civ 1390
Docket NumberCase No: C1/2020/1444
Year2021
CourtCourt of Appeal (Civil Division)
Between:
The Queen (On the Application of Cornerstone (North East) Adoption and Fostering Services Ltd)
Appellant/Claimant
and
Her Majesty's Chief Inspector of Education, Children's Services and Skills (Ofsted)
Respondent/Defendant

[2021] EWCA Civ 1390

Before:

Lord Justice Peter Jackson

Lady Justice Asplin

and

Lady Justice Nicola Davies

Case No: C1/2020/1444

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT (QUEEN'S BENCH DIVISION)

Mr Justice Julian Knowles

CO/2373/2019

Royal Courts of Justice

Strand, London, WC2A 2LL

Aidan O'Neill QC and Ben Silverstone (instructed by Ai Law) for the Appellant/Claimant

Sarah Hannett QC (instructed by Ofsted Legal Services) for the Respondent/Defendant

Hearing dates: 29–30 June 2021

Approved Judgment

Lord Justice Peter Jackson

Introduction

1

The Appellant (‘Cornerstone’) is an independent fostering agency (‘IFA’). It recruits and supports carers for children in local authority care who need to be fostered and in some cases adopted. The Respondent (‘Ofsted’) is the statutory body whose functions include the registration, regulation and inspection of IFAs.

2

The issue in this case is whether it is lawful for Cornerstone only to accept heterosexual evangelical Christians as potential carers. Ofsted considers that it is unlawful and, in a report issued in draft on 12 June 2019 (‘the Report’), it assessed the effectiveness of Cornerstone's leaders and managers as ‘Inadequate’. This was in large measure because Ofsted considered that, by only recruiting foster carers who are practising Christian carers in opposite sex marriages, Cornerstone's recruitment and selection process for foster carers did not comply with the requirements of the Equality Act 2010 (‘ EA 2010’) and the Human Rights Act 1998 (‘ HRA 1998’). It asserted that the policy contravened both enactments as being discriminatory on the grounds of sexual orientation and that it contravened the HRA 1998 on the grounds of religion or belief. It required Cornerstone, by 31 July 2019, not to discriminate in its recruitment of foster carers in either respect.

3

On 19 June 2019, Cornerstone issued judicial review proceedings, seeking a declaration that Ofsted's finding that its recruitment policy contravened the EA 2010 or the HRA 1998 was unfounded, an order quashing the requirement in the draft report, and damages.

4

The claim came before Mr Justice Julian Knowles (‘the Judge’) at a hearing on 6–7 May 2020. In a judgment dated 7 July 2020 (‘the Judgment’), reported as R (on the application of Cornerstone (North East) Adoption and Fostering Service Ltd v Office for Standards in Education, Children's Services and Skills [2020] EWHC 1679 (Admin), he made these findings:

(1) Cornerstone's recruitment policy is not unlawfully discriminatory under either the EA 2010 or the HRA 1998 on the grounds of religious belief because the exception in paragraph 2 of Schedule 23 EA 2010 applies.

(2) Cornerstone's policy of requiring applicants to refrain from homosexual behaviour unlawfully discriminates against gay men and lesbians under the EA 2010, and in requiring applicants to be heterosexual it unlawfully discriminates against gay men and lesbians under the HRA 1998.

(3) Ofsted's report did not violate Cornerstone's rights under Articles 9–11 and 14 of the European Convention on Human Rights (‘the Convention’).

(4) Ofsted's report was not unlawful as being in breach of its guidance on the inspection of IFAs, entitled ‘Social Care Common Inspection Framework: Independent Fostering Agencies’ (February 2017) (‘SCCIF’).

The Judge therefore dismissed Cornerstone's claim and he ordered it to pay 75% of Ofsted's costs. On 11 August 2020, Ofsted published a version of the Report that had been amended to reflect the aspects of Cornerstone's claim that had been upheld.

5

Ofsted does not appeal from the Judge's finding in relation to religious discrimination.

6

Cornerstone appealed on twelve grounds. The Judge granted permission to appeal on four grounds (Grounds 3, 4, 9 and 10). The application in relation to the other grounds was renewed and on 1 March 2021 King LJ granted permission on one further ground only (Ground 1).

7

The five grounds for which permission has been granted are:

Ground 1: the judge erred in concluding that Ofsted properly had – and in all the circumstances properly exercised its – power and jurisdiction to require Cornerstone to disapply or modify its recruitment policy for foster carers as contained in its charitable instrument, notwithstanding the finding by the Charity Commission – exercising the specific mandate afforded to it by Parliament under Section 193 EA 2010 – that when acting in pursuance of this charitable instrument, Cornerstone did not contravene the EA 2010.

Ground 3: the judge erred in concluding that Cornerstone's recruitment, selection and appointment of Cornerstone foster carers in accordance with its policy constituted direct discrimination because of sexual orientation, within the meaning of s. 13(1) EA 2010.

Ground 4: the judge erred in concluding that Cornerstone's recruitment, selection and appointment of Cornerstone foster carers in accordance with its policy is not a proportionate means of achieving a legitimate aim and is therefore unlawful indirect discrimination, within the meaning of s. 19(2)(d) EA 2010, on grounds of sexual orientation.

Ground 9: the judge erred in holding that when it recruits, selects and appoints Cornerstone foster carers in accordance with its policy, Cornerstone acts incompatibly with the Convention right under Art. 14 (read with Art. 8) of hypothetical gay or lesbian evangelical Christians who might wish to become Cornerstone foster carers; and

Ground 10: the judge erred in holding that Ofsted's requirement that Cornerstone disapply or modify its recruitment policy for foster carers as contained in its charitable instrument was compatible with respect for the Convention rights under Arts. 9–11 and/or 14 which Cornerstone could pray in aid as a religious organisation.

8

The seven grounds of appeal for which permission was refused are (in summary) that the Judge was wrong to find that:

2. Cornerstone acts as a “service-provider” concerned with the provision of a service to the public or a section of the public, for the purposes of Section 29(1) EA 2010.

5. The recruitment of foster carers is done on behalf of a public authority, within the meaning of paragraph 2(10)(a) of Schedule 23 EA 2010.

6. The recruitment of foster carers is done under the terms of a contract between Cornerstone and a public authority, within the meaning of paragraph 2(10)(b) of Schedule 23 EA 2010.

7. Cornerstone is providing a service or otherwise acting in the exercise of a function that is a function of a public nature for the purposes of the HRA 1998 and so also for the purposes of Section 29(6) EA 2010 (by virtue of Section 31(4)).

8. When it recruits foster carers Cornerstone acts in breach of its obligations under Section 6 HRA 1998 even in circumstances where there is no alleged “victim” within the meaning of Section 7 HRA 1998.

11. Ofsted did not act unlawfully in not following the SCCIF in the circumstances of this case.

12. Ofsted's finding that Cornerstone had been guilty of unlawful discrimination on grounds of religion or belief was severable from Ofsted's decision to downgrade its previous assessment of Cornerstone's services as an IFA.

Preliminary applications

9

On 21 June 2021, Cornerstone issued an application to reopen the refusal by King LJ of permission to appeal in respect of Grounds 2 and 7, which concern the finding that it is a service-provider within the meaning of s. 29 EA 2010. As to Ground 2, it argued that the Judge was wrong to hold that when it recruits foster carers it provides a service, as opposed to making an appointment to a personal office. In consequence, it can rely upon exceptions that arise under Part 3 of the EA 2010 (which concerns ‘Work’), but not under Part 5 (which concerns ‘Services’), and specifically upon paragraphs 2 and 3 of Schedule 9. As to Ground 7, Cornerstone argued that in relation to the HRA 1998 its recruitment of carers was a private act and that it was therefore not obliged to act compatibly with the Convention. The Judge was wrong to elide its recruiting activities with the distinct act of placing children with a carer.

10

The Judge rejected these arguments at [174–178] and [259]. In the latter paragraph he stated:

“259. I do not accept Cornerstone's argument that the act of recruiting a potential foster carer is akin to an employment recruitment decision by a private body, because it is not. Foster carers do not work under contract (cf National Union of Foster Carers v Certification Officer [2019] IRLR 860) and their recruitment and training is subject to statutory regulation (eg in Part 5 of the Fostering Regulations) in the way that the recruitment of an employee is not.”

Cornerstone made the same arguments to King LJ, who rejected them for the reasons given by the Judge.

11

In seeking to reopen, Cornerstone cites the subsequent decision of this court in National Union of Professional Foster Carers v Certification Officer [2021] EWCA Civ 548 (‘ NUPFC’), handed down on 16 April 2021. The case concerned the Convention rights of foster carers under Article 11 ECHR associated with the formation of a trade union. This court, differing from the decision of the Employment Appeal Tribunal that was cited by the Judge, considered that foster carers were in an employment relationship with fostering services: see...

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