Background
In R (CKS & Ors) v Secretary of State for Education [2026] EWHC 741, the claimants were three children (their parents acting as litigation friends) who were members of the Charedi Jewish community and attended private Charedi schools. They challenged the Department of Education’s Universal Infant Free School Meals policy (“UIFSM”), which requires state-funded schools to provide a free school meal to all state-funded school pupils in Reception and Key Stage 1 without any means test – but does not apply to pupils in private schools [1 & 2].
The arguments
The grounds of challenge were as follows [3]:
- that the refusal was discriminatory on grounds of the claimants’ religion or race, contrary to Article 14 ECHR read with Articles 8, 9 and A2P1 (Ground 1),
- that it breached the Public Sector Equality Duty in s.149 Equality Act 2010 (Ground 2), and
- that it failed adequately and rationally to take into account the position of Charedi children (Ground 3).
The claimants argued that the principle in Thlimennos v Greece 34369/97 [2000] ECHR 162 was engaged, that:
“The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different” [38],
and that they were in a “relevantly different” position from other private school pupils and should not be treated in the same way [137], largely because the Charedi community experienced high levels of economic deprivation.
The judgment
All grounds of challenge were rejected. While Mansfield J accepted that there was clear evidence demonstrating the deprivation of the Charedi community and that it was is in a different financial position from most other families who used private schools,
“… deprivation is not itself an aspect of race or religion. The simple fact that Charedi children are treated differently to other private school pupils does not indicate discriminatory treatment on grounds of race or religion” [137].
If he had accepted that the claimants had no choice but to attend an independent school, “then the relevant comparator for Thlimmenos purposes would be private school children who do have the choice to attend state schools” and “there was simply no evidence as to the composition of the comparator group” [137].
As to the alleged breach of the Public Sector Equality Duty, “there were powerful reasons to continue to provide UIFSM only to state-funded schools” [150].
As to Ground 3, the Minister had been
“… entitled to regard Charedi parents as exercising a choice and entitled to have regard to that choice in making her decision about the request to extend UIFSM. There was no flaw in the Defendant’s reasoning. It was not irrational of the Defendant to have taken that view” [152].
Application dismissed [154].