The Khalsa Academies Trust Ltd is a multi-academy trust responsible for operating three academies, one of which is Khalsa Secondary Academy in Stoke Poges. Ofsted had concluded in January 2020 that the Academy was “Inadequate” and “requiring special measures”: in particular, that the arrangements for safeguarding were “not effective” and that “Leaders, including those at trust and governance level, have not learned from serious safeguarding failures. They have not acted with the urgency required.” The Secretary of State then decided that the Academy should be transferred, or “re-brokered”, to the Sikh Academy Trust.
In R (Khalsa Academies Trust Ltd) v Secretary of State for Education  EWHC 2660 (Admin), the Trust sought judicial review of that decision [1&2]. There were four grounds of challenge:
“Ground 1. The Defendant failed to take account of relevant considerations and breached the Trust’s legitimate expectations concerning compliance with the principles in the Memoranda of Understanding with Catholic and Church of England bodies.
(a) The Defendant directly discriminated against the Academy, and/or its pupils, staff and parents by treating the Academy differently, because of its Sikh faith status, than it would have treated a Catholic or Church of England academy, its pupils, staff and/or parents.
(b) The Defendant failed in its duty to pay due regard to the need to eliminate discrimination and advance equality, contrary to s.149 Equality Act 2010.
Ground 3. The Defendant acted irrationally by refusing to delay the Decisions to allow consideration of material, alleged to be highly relevant, the availability of which was imminent.
Ground 4. The Defendant acted irrationally in the light of all the circumstances, including the impact of Covid-19; the Defendant’s own guidance; the strong independent evidence of the Trust’s significant progress; the evidence of a concerted campaign against the Trust; and the additional evidence which the Defendant knew or ought to have known would shortly be available” .
Gavin Mansfield QC, sitting as a Deputy Judge of the High Court, rejected the application.
As to Ground 1, which alleged differences in treatment between the Trust and the Network of Sikh Organisations (“NSO”) on the one hand and Church of England and Catholic schools on the other, the Memoranda of Understanding with the Church of England and the Catholic Church in England & Wales were in any case not identical. The Church of England MOU did not include a requirement to engage and consult “as soon as any concerns have come to the attention of the RSC [Regional Schools Commissioners] which might lead to the issue” of a Termination Warning Notice (in the case of an academy) or the equivalent notice in respect of a maintained school. . While the Defendant had not notified the NSO of its concerns before issuing the Termination Warning Notice, the failure to notify had had no effect on the NSO’s ability to engage and consult and to make representations  – and if it had been a departure from the spirit of the Memorandum of Understanding it had “made no difference to the form or content of consultation and no difference to the outcome” .
As to Ground 2(a), there was no evidence to indicate that the consultation that took place had been “less favourable” in its timing, scope and content than that which would have been conducted in the case of a Church school. Any differences were readily explained by the different role and nature of the NSO in relation to Sikh schools as compared to the Church school bodies . But, in any event, Ground 2(a) necessarily failed because Ground 1 failed .
As to Ground 2(b) – the contention that the Defendant had breached the public sector equality duty in s.149 Equality Act 2010 by failing to have due regard to the need to eliminate discrimination on grounds of ethnicity and religion and to advance equality between Sikhs and others – the challenge was without substance, “whether looked at now or at the time of the Decisions” .
As to Ground 3:
“The Trust claims that it was irrational to have proceeded when Ofsted monitoring inspections were not being carried out [and] that the case was not so urgent that the Department needed to press ahead with termination during the height of the pandemic, and should have waited so that Ofsted and Buckinghamshire could reinspect and provide independent evidence of the Trust’s progress. I reject that submission. Regardless of the position with Ofsted inspections, the Defendant had a responsibility to the staff, pupils and parents of the Academy and its own Guidance shows the importance of swift action where a school is inadequate” .
As to Ground 4:
“Once the grounds for issuing a termination were established, the Defendant had to assess whether the Trust had demonstrated sufficiently rapid and sustained improvement so as to justify leaving it in charge of the Academy, when it had allowed such significant failures to occur. In the Trust’s favour, there was evidence that steps had been taken to improve matters, and that progress had been made and was continuing to be made. The Ministerial Submission and the Decisions show that the Defendant had regard to those matters. The weight to be attached to them was a matter of assessment and judgment for the Defendant. Nothing in the Trust’s evidence or submissions persuades me that the Defendant’s assessment was irrational in the legal sense” .
Claim dismissed .