Held, claim dismissed. (1) The claimant was an independent fostering agency which, on the facts, provided services to at least two sections of the public, namely those adults who wished to become foster or adoptive parents and those children and young people who needed to be fostered or adopted. It provided a service by seeking to fulfil the wishes and desires of both groups, first, by recruiting and training carers, approving them, and then matching them with suitable children and young people on behalf of, and pursuant to contracts with, public authorities. It was thus an undertaking that was concerned with the provision of at least two sections of the public within the meaning of section 29(1) of the Equality Act 2010. If that were wrong, the claimant’s function of recruiting foster carers and placing children and young people with them was a public function for the purposes of section 29(6) of the 2010 Act (paras 168, 178).

(2) The claimant’s carer recruitment policy, in so far as it required applicants to refrain from “homosexual behaviour”, clearly, directly and unambiguously discriminated against non-heterosexuals because no matter how much such a person might wish to become a foster parent, and no matter how wonderful and loving a foster parent he or she might make, the claimant would not accept them, simply because of their sexual orientation. It would not provide them with its services, or train them or approve them but would be bound to reject them in practice. That was to treat gay men and lesbians less favourably than heterosexual men and women because of their sexual orientation, which was a protected characteristic under sections 12 and 13(1) of the 2010 Act. Accordingly, the claimant’s policy was unlawfully discriminatory, in breach of section 29(1) or (6) of the 2010 Act, unless an exemption applied (paras 179–182, 313).

(3) If the policy did not amount to direct discrimination, requiring carers not to engage in “homosexual behaviour”, which the claimant described in its code of practice as a “sexual sin”, amounted to indirect discrimination. The starting point in analysing whether that was justified under section 19(2)(d) of the 2010 Act was that particularly weighty reasons had to exist to justify discrimination on grounds of sexual orientation. To be proportionate the measure not only had to be suitable in principle to achieve the avowed aim, it also had to be shown, the burden being on the claimant, that it would be necessary to exclude those of the specific sexual orientation from the scope of the application of the provision. However, there was insufficient evidence to show that there were sufficiently weighty and convincing reasons why the claimant should be permitted to have a policy, which was not, or not sufficiently, rationally connected to the aims which it said the policy pursued. Therefore, it failed the second stage of the four-stage test of proportionality (whether the measure was rationally connected to the objective it sought to achieve). It also failed the third stage of the test, since it could achieve what it wanted to achieve by a less restrictive measure, ie, one which was not discriminatory on grounds of sexual orientation. Assessment of proportionality involved striking a balance between various interests, and in doing so the court had had full regard to the claimant’s rights under the Convention. However, the court failed to see how excluding a category of evangelical Christians (gay men and lesbians) from being foster carers achieved the aim which the claimant said it had of increasing the number of evangelical Christian carers. Nor had the claimant shown by convincing evidence that its policy had benefitted children and young people in a way which it would not have done had the policy not so discriminated. A discriminatory policy could not have a positive impact on the claimant’s aim of affording critical support to carers or assist in allowing those within the evangelical Christian community to serve by promoting stable and durable placements, unless it could be said that gay and lesbian evangelical Christians could not provide such placements, a position which the court flatly rejected. Altering the policy so as to be non-discriminatory would not adversely impact the ability of evangelical Christianity to manifest the practice of Christian charity and the support of Christian family life to the benefit of the carers, the children cared for, the claimant and society as a whole (paras 185–188, 202–211, 313).

(4) The statutory provisions governing foster care arranged by independent fostering agencies meant that they provided their agency services “on behalf of” local authorities, which were public authorities, for the purposes of paragraph 2(10) of Schedule 23 to the 2010 Act. The phrase “on behalf of” did not require a relationship of agency between a local authority and the agency, the relationship being better understood as one of delegator/delegate. It was apparent from the clear words in the Care Standards Act 2000 that the function of independent fostering agencies was to carry out the functions of a local authority and that Parliament envisaged the possibility of broad delegation to such agencies for the efficient performance of a local authority’s functions. Accordingly, whilst the claimant was permitted exclusively to recruit evangelical Christian carers because of the exemption for religious organisations in paragraph 2 of Schedule 23 to the 2010 Act, the disapplication of the general exemption in paragraph 2(3) by sub-paragraph (10) applied because the claimant performed functions on behalf of public authorities pursuant to contract. Neither did the charity exception in section 193 of the 2010 Act apply since, although the claimant acted in pursuance of a charitable instrument, for the reasons set out in relation to section 19, by only providing its services to heterosexuals, the claimant was not acting in a proportionate way to achieve a legitimate objective. It followed that the claimant’s carer recruitment policy breached section 29 read with section 13, or section 19, of the 2010 Act because the policy meant that the claimant would not recruit gay men or lesbians as potential foster carers, which amounted to unlawful discrimination on the grounds of sexual orientation (paras 212–223, 224–226, 232, 313).

(5) When considering whether a body was a hybrid public authority, for the purposes of section 6 of the Human Rights Act 1998, statutory context and language were vital. When an independent fostering agency placed looked after children with foster parents, they performed a task which the local authority, as a core public authority, was under a duty to perform, but which in the present case it had delegated to the claimant pursuant to statutory powers. The Care Standards Act 2000 made provision for the registration and regulation of fostering agencies, section 4(4)(a) providing that a fostering agency was an undertaking which consisted of or included “discharging functions of local authorities” in England in connection with the placing of children with foster parents. Where a statutory provision provided that a private entity could discharge the functions of a local authority, the private entity could not be doing anything other than exercising a public function for the purposes of section 6 of the 1998 Act. Regulation 26 of the Care Planning Regulations was also relevant. In short, an independent fostering agency in such circumstances would be taking the place of local authorities when it placed foster children with foster parents. While recruiting potential foster carers might be viewed as a private act, on the basis that it involved a private arrangement between two private entities who were free to arrange the conditions of the bargain between themselves, that function was preparatory to, and a necessary gateway for, the placing of the foster carer with a fostered child or young person under statutory powers, which was, a public function. There seemed to be no basis to distinguish between the recruitment of potential foster carers as a private act, and the placing of a child or young person with such a carer as a public act, which were simply different stages of the same continuous process, which was public in its fundamental nature because it was a function which the local authority would otherwise have had to undertake. If a local authority fostering service were to refuse an applicant on the grounds of his/her sexuality then they would unquestionably be performing a public act, and would be susceptible to challenge on article 14 and article 8 Convention grounds and the same conclusion had to follow where that function was carried out by an independent fostering agency under statutory powers. In so far as the claimant’s carer recruitment policy required carer applicants to be evangelical Christians it did not violate article 14 read with article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as given effect by section 6 of the Human Rights Act 1998, since the discrimination was objectively justified because paragraph 2 of Schedule 23 to 2010 Act specifically allowed religious organisations such as the claimant to discriminate on the grounds of religious belief in relation to various things, including the provision of goods, facilities or services in the course of activities undertaken by the organisation or on its behalf or under its auspices. However, the policy did violate article 14 of the Convention in so far as it required carer applicants to be heterosexual. In that respect the policy was not objectively justifiable. For the reasons given above, it was not a proportionate means of achieving a legitimate aim, Parliament having struck the proportionality balance in paragraph 2(10) of Schedule 23 to the 2010 Act. Accordingly, Ofsted had been right to conclude that the claimant’s blanket exclusion of gay and lesbian individuals from being carers violated article 14 of the Convention, read with article 8 (paras 243–250, 256–260, 270, 284–286, 290, 313).

(6) By requiring the claimant to alter its recruitment policy regarding religious belief, even though it had wrongly concluded that that was required by the Human Rights Act 1998, Ofsted had not materially interfered, that is, to an extent which was significant in practice, with the claimant’s freedom to manifest its religious beliefs under article 9.1 of the Convention. The requirement that carers had to be evangelical Christians was not sufficiently intimately or necessarily linked to the claimant’s stated aims to encourage evangelical Christians to fulfil their Christian observance or mission by becoming foster or adoptive carers in a way that engaged article 9.1. For essentially the same reasons, the non-recruitment of gay and lesbian foster carers was not a manifestation of religious belief for the purposes of article 9.1 (paras 292, 297, 301, 303, 313).