Thlimmenos Does Not Permit Positive Discrimination - R (CKS) v Secretary of State for Education

The High Court (Mansfield J) has held that Thlimmenos discrimination can only apply where a claimant is asking for an exception to be introduced to an otherwise general rule; it does not apply where both the claimant and their comparator are outside the ambit of the general rule and thus not subject to any “treatment”. In this sense, the Thlimmenos principle does not permit claimants to seek a form of positive discrimination. The case is R (CKS and others) v Secretary of State for Education [2026] EWHC 741 (Admin).

Background facts

The claimants, members of the Charedi Jewish community who attend private Charedi schools, challenged the Government’s Universal Infant Free School Meals policy (“UIFSM”). UIFSM requires state-funded schools to provide a free school meal to all pupils in state-funded schools in Reception and Key Stage 1 (i.e. the earliest years of primary school) on a non-means-tested basis.

Members of the Charedi community are recognised as having high levels of deprivation. Representatives of the community have sought to persuade the Government to extend UIFSM to Charedi private school pupils, but the Government has declined.

The central ground of challenge was that the Government’s refusal is discriminatory on grounds of their religion or race, contrary to Article 14 ECHR read with Articles 8, 9 and A2P1.The claimant relied on this ground on Thlimmenos discrimination. The ECtHR in Thlimmenos explained at [44] that “[t]he 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” ([65]).

The claimants argued that, due to their high levels of deprivation, they were in substantively different positions from other private school pupils such that they should have been brought within the ambit of UIFSM. The central issue was whether the claimant’s complaint engaged the Thlimmenos principle at all ([62]-[63]).

The competing arguments

The claimants argued that their case entailed a straightforward application of Thlimmenos: the defendant operates a policy excluding the claimants and other private school pupils from it; the claimants’ circumstances are significant different to them; it is thus Thlimmenos discrimination not to treat them differently ([88]).

The defendant’s initial position in pre-action correspondence accepted that, in light of the Divisional Court’s decision in the VAT on private schools challenge (“the VAT case ”) (the human rights dimension of the case was covered by the blog here), there was differential treatment in this case requiring justification ([63]). However, their subsequent position was that Thlimennos was not engaged. This is because neither the claimants nor their comparator (other private school pupils) are subjected to any “treatment”. The Thlimmenos principle requires that someone caught be a rule should be excepted from it. It does not operate to extend a policy to provide benefits to those outside its remit. To extend Thlimmenos to such a situation would entail impermissible “positive discrimination in favour of a particular group” ([88]).

The claimants argued that there was no principled difference between (a) a person excluded from a benefit because the rules of entitlement are not designed to include him; and (b) a person excluded because the rules would have included that person but from an exception applied to him ([89]).

The Court’s decision

Although both parties cited several authorities in support of their position, no case has decided this issue as part of their ratio.

The defendant relied on two cases. First, R (A and another) v Secretary of State for Health * [2016] 1 WLR 331. That case concerned a challenge to the Health Secretary’s refusal to exercise his power to provide abortion services to women resident in Northern Ireland. It was argued that this was discriminatory when contrasted with the position in England, where the Secretary had a duty to provide such services. Elias LJ observed, *obiter that:

“I very much doubt whether this way of putting the case even engages the Thlimmenos principle. In Thlimmenos the applicant argued that it was unfair not to differentiate him from others caught by a general rule. Here, the general rule is that, exceptional cases apart, only those resident in England can have an abortion free on the NHS. The first claimant is not someone caught by that rule who is seeking to be an exception to it; on the contrary, she is complaining that she has not been brought within it when she should have been. She is seeking to be differentiated from those who fail to comply with the rule rather than those to whom it is applied.”

Mansfield J considered that reasoning “persuasive” as a matter of principle despite it being obiter ([95]).

Second, R (Drexler) v Leicestershire CC [2019] ELR 412. The Council, due to financial constraints, changed its transport policy for disabled persons between 16-18 to remove provision of free home to school transport, so that families will receive a personal transport budget in its place. The claimant’s Thlimennos claim was that this changed policy was insufficiently different from the council’s mainstream policy, by which annual grants are paid to non-disabled pupils aged 16 to 18. Swift J observed that the claimant’s argument was essentially that the differential treatment between disabled and non-disabled pupils was insufficient to recognise disabled students’ needs, and this amounted to a positive discrimination argument (at [58] of Drexler).

However, as Mansfield J noted, these statements were made in the context of Swift J’s argument that Thlimmenos does not go “beyond claims that are recognisably claims of indirect discrimination”. Swift J also recognised (at [58] of Drexler) that Thlimmenos applies “where a single practice is applied to the disadvantage of a protected group”. This description could in principle also apply to the present case – non-entitlement of private school pupils to UIFSM, to the disadvantage of Charedi pupils.

As for the authorities the claimants relied on, they also did not directly address the scope of Thlimmenos and whether it could apply here.

First, whilst in Burnip v Birmingham CC [2012] EWCA Civ 629 Maurice Kay LJ was “not persuaded [there was] a legal no-go area” that Courts would not apply Thlimmenos to “require a [public authority] to take positive steps to allocate a greater share of public resoures to a particular person or group” ([17]-[18] of Burnip), there was no detailed consideration of the scope of Thlimmenos ([99]).

Second, in Jwanczuk (covered by the blog here), the Supreme Court did not examine the scope of Thlimmenos despite applying it ([100]). In any case, the Supreme Court’s formulation of the principle – that “article 14 [ECHR] may impose a positive duty to treat individuals differently in certain situations, by introducing an exception to an otherwise general rule in their case” – was consistent with the rule put forward by the defendant.

Third, the issue in Taddeucci v Italy (2016) 51362/09 was similar to that in Thlimmenos, such that no light was shed on its application in this case ([104]). The applicants, a same sex couple, were refused a family residence permit as they were unmarried cohabiting partners who were “not members of the same family”. The Court found the applicants were unjustifiably treated in the same way as heterosexual couples who were unmarried by choice, given only same-sex couples did not have the possibility of marriage in Italy ([103]).

Fourth, unlike the VAT case where the imposition of VAT on Charedi private school pupils (amongst others) was undoubtedly a form of treatment and they were asking for a form of exception to be applied to them, the claimants in the present claim were “completely outside a scheme” the defendant had designed ([108]). In this sense, the claimants were not subject to a rule (such as VAT liability) nor were they “deprived of a benefit to which they otherwise would be entitled simply because an exception applied to them” ([108]). The exception the claimants relied upon (deprived private school pupils) was central to the design of the scope of the benefit (UIFSM) ([108]).

The claimants were thus effectively asking for a scheme ([107]). Neither the claimants nor their comparator (other private school pupils) fell within the scope of the rule (UIFSM); they in fact sought a form of positive discrimination ([108]).

This aspect of the challenge was thus dismissed.

Comment

As can be seen from Mansfield J’s canvass of the relevant cases, this seems to be the first case that has articulated, as part of its ratio, the principle that Thlimmenos can only apply where a claimant is seeking an exception to a general rule. Three points merit comment.

First, there are some similarities in the motivations for the court’s decision in this case, and BSC where the High Court delineated the “non abdicable powers” test for fettering discretion. Both involve the limitation of public law principle. In BSC, this was motivated by a fear that fettering discretion, if not properly limited, could permit a “form of continual regression” whereby many policy choices may be characteristed as a fettered discretion, leading to endless arguments for a public authority to keep an open mind. In CKS, the prevention of Thlimmenos discrimination extending to applicants not party to a scheme or rule seeking inclusion was motivated by an antipathy towards “positive discrimination” ([109]).

Second, as with BSC in which a bright line was sought to be drawn, it is not clear that the test the court alighted upon here is easy to apply. For example, in welfare benefits cases involving discretionary or needs-based elements, or where a scheme has multiple overlapping criteria, the line between an applicant being completely outside of a scheme, or caught by one and needing exception, is not easy to draw.

Third, the court’s decision makes the plausibility of Thlimmenos arguments depend more heavily on policy design. For example, one can see how the UIFSM policy could have been introduced in a way which would permit a Thlimmenos argument. To recall, the policy in this case was materialised, in summary, as follows. UIFSM was introduced in legislation in 2014. Section 512ZB(2) read with 512ZB(4A) of the amended Education Act 1996 provides that one would be “eligible for free lunches” if they are “a registered person at a maintained school or pupil referral unit” and “in reception, year 1, year 2 or any other prescribed year group at the school”. There is no duty on the Education Secretary to provide free school meals, though she has a power to do so under section 14 Education Act 2002. In June 2025, the Education Secretary published guidance explaining its decision to fund UIFSM for the relevant cohort under section 14 of the 2002 Act for 2025/2026.

However, consider the scenario where s.512ZB(4A) of the 1996 Act had defined eligibility for UIFSM as being for a “registered pupil at any school ** (whether maintained, academy, or registered independent/private school) ”. Consider further that the UIFSM policy had been given effect through the Education Secretary’s section 14 funding decision that “The Secretary of State shall reimburse the cost of providing such meals to the school, but only in respect of pupils attending a state-funded (maintained or academy) school.”

It seems clear that, under this hypothetical, a Thlimmenos claim could have proceeded. The general rule (universal eligibility for UIFSM for all registered pupils) now applies to the claimants’ (Charedi private school pupils) and to the comparator group (other private school pupils). The “state-funded only” condition operates as the disqualifying element within that rule. The claimants would then be seeking an exception to the funding condition.

If the line the court has drawn is to be followed, there will undoubtedly be more litigation on how it is to be applied in Thlimmenos cases.

Gabriel Tan

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