First Essex Buses Ltd, R (on the application of) v Secretary of State for Transport & Anor

Where the Secretary of State determines an appeal concerning concessionary travel reimbursement, the statutory function is not incomplete merely because the final amount remains to be calculated from outturn data. A direction requiring a local authority to recalculate reimbursement in consultation with the operator may constitute a final determination, provided the modification to the arrangements is made clear.

The statutory appeal provisions do not require the Secretary of State to determine whether a local authority has correctly implemented the arrangements, including arrangements previously modified on appeal. Such disputes may be resolved by litigation or arbitration. Implementation of modified arrangements does not itself create a further variation or a renewed right of appeal.

The claimant, a local bus operator, challenged the Secretary of State’s refusal to determine a second application concerning reimbursement under a county-wide concessionary travel scheme for 2006/07.

The Secretary of State had determined the claimant’s first application in January 2007. He directed interim payments and required the local authority to recalculate reimbursement after the year end using outturn data, in consultation with the claimant. The authority subsequently adopted its consultant’s calculation. The claimant disputed the implementation and sought a further determination under sections 98 of the Transport Act 1985 and 150 of the Transport Act 2000.

The central issues were whether the first determination was final, whether the Secretary of State had jurisdiction to determine an implementation dispute, and whether the authority’s implementation constituted a variation giving rise to a fresh appeal.

1. Claim dismissed. The January 2007 determination was final, not interim or incomplete. It lawfully modified the reimbursement arrangements by requiring the Council, in consultation with the claimant, to recalculate reimbursement using the specified methodology and outturn information.
2. Sections 98(7) of the Transport Act 1985 and 150(8) of the Transport Act 2000 did not require the Secretary of State to specify the precise reimbursement sum or an unambiguous formula. The word “specified” required the modification to the arrangements to be made clear. It did not require the recalculated amount itself to be readily identifiable in the direction.
3. The January 2007 determination required consultation, not agreement, between the parties. The statutory provisions contained no requirement that the Secretary of State determine whether reimbursement arrangements, as originally made or subsequently modified, had been correctly implemented.
4. The dispute over implementation was therefore a matter for the parties, to be resolved if necessary by litigation or arbitration. The availability of judicial review of the January 2007 determination, and of proceedings before an independent court or arbitrator against the Council, meant that the claimant’s rights under Article 6 and Article 1 of the First Protocol to the ECHR were not determined unfairly.
5. The Council’s purported implementation of the modified arrangements was not a variation of those arrangements. Treating implementation as a variation would create an ever-renewing right of application to the Secretary of State. The refusal to determine the second application was lawful.