September 28th, 2021 by James Goudie KC

In R (Cornerstone) v OFSTED (2021) EWCA Civ 1390 the Court of Appeal held that OFSTED had power to require Cornerstone to disapply or modify its recruitment policy for foster carers, as contained in its charitable instrument, notwithstanding the views of the Charity Commission. Different regulators May each reach their own conclusion within their respective competencies. When carrying out Inspections, OFSTED is entitled to have regard to the Equality and Human Rights Acts.
Cornerstone’s recruitment policy did not violate Art 14 of the ECHR read with Art 8, insofar as it required carers to be evangelical Christians, but did constitute direct, alternatively indirect, discrimination, on grounds of sexual orientation, and would be unlawful in the absence of justification. That left the critical issue of proportionality. Cornerstone’s claim of justification was held to have been rightly rejected.

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