Essex County Council, R (on the application of) v Secretary of State for Education

A public authority is not generally required to consult affected bodies about the precise criteria chosen to reduce discretionary public funding. A consultation duty requires a sufficiently pressing and focused procedural expectation. The importance of the subject and routine discussions about individual projects are insufficient.

A funding criterion is rational where it is connected to the objective of saving public money and represents a reasonable choice among available alternatives. Equality duties must, however, be discharged before and during the decision, with rigour and an open mind. General awareness of likely impact is insufficient where the decision-maker has not evaluated the impact on protected groups.

Essex County Council challenged the Secretary of State’s decision to withdraw part of its ability to carry forward early-years capital funding. Essex argued that the decision was unlawful because there had been no consultation about the definition of committed expenditure, the selected criterion was irrational, and the Secretary of State had failed to comply with statutory race and disability equality duties.

The court rejected the consultation and rationality challenges. It found that the decision-making process failed to demonstrate due regard to the statutory equality duties applicable when the decision was made.

1. Consultation. The claim that consultation was required about the detailed criterion for committed expenditure failed. The criterion-specific challenge was distinct from any challenge to the wider funding reduction. The previous discussions between the Department’s consultants and Essex concerned individual projects, not the possibility of cancellation during financial stringency. They did not create a pressing and focused procedural expectation. The Secretary of State was therefore under no duty to consult Essex about the precise criterion.
2. Rationality. The Secretary of State was entitled to seek savings by selecting measures imposing the least burden on public funds. The relevant question was whether projects could be cancelled before providers became contractually committed to construction. The evidence showed that Essex could withdraw from the provider contracts at no, or no significant, cost. The criterion was rationally connected to the saving objective and was a reasonable choice among available criteria.
3. Equality duties. The principles summarised in R(Brown) v Secretary of State for Work and Pensions required due regard to be exercised before and at the time of decision, in substance, with rigour and with an open mind. The duty was not discharged merely because officials had received training, the likely impact on protected groups was obvious, or local authorities would have better local information. The Department could have evaluated the overall impact of the funding cuts on disabled children and families from ethnic minorities. It failed to do so.
4. The duty remained on the public authority, but the Secretary of State could rely on properly informed work by departmental officials. The prohibition on delegation did not prevent officials within the department from performing functions, subject to the qualifications concerning external bodies and supervision.
5. The decision was quashed and ordered to be retaken only so far as necessary to comply with the Equality Act 2010. The other issues were not to be reopened unless consideration of the Equality Act required it. The defendant was ordered to pay 50 per cent of the claimant’s costs.

First-instance judicial review in the Administrative Court. No appellate history is stated in the judgment.