Essex County Council v Secretary of State for Education

On a renewed application for permission to bring judicial review proceedings, permission should be granted where the claimant identifies an arguable challenge to the decision-making process. A rational expenditure criterion is not necessarily undermined because one reason previously given for it no longer applies when the decision is retaken. An arguable case may arise where materially similar exceptions are treated differently without explanation, the claimant’s case is not properly addressed, or an adverse reason was not put to the claimant. Such matters may engage fairness, adequate reasoning and rationality.

The Secretary of State retook a decision after Mitting J had quashed an earlier decision concerning Essex County Council’s request to carry forward finance for preschool and school building projects. The retaken decision generally refused carry-forward, subject to projects where building contracts had been concluded before 29 July 2010. The Council renewed its application for permission to apply for judicial review, challenging the criterion, the treatment of exceptions, the reasons given and compliance with a statutory equality-assessment requirement.

1. The court granted permission to apply for judicial review, instead of permission to appeal.
2. The cut-off-date criterion appeared rational and sensible. Its application was not undermined merely because its earlier predictive rationale no longer applied after the projects had been completed.
3. There was an arguable challenge concerning exceptions refused on the second decision. Reasons identical to those supporting exceptions in the first decision were treated differently without adequate explanation, and the Council’s case concerning specified projects was not properly addressed.
4. An adverse reason had not been alerted to the Council. This disclosed an arguable case based on reasons, fairness or rationality.
5. The court had considerable doubt about the equality-assessment ground but allowed it to proceed because permission was granted on other grounds and the issue was short. The power to grant permission to apply for judicial review instead of permission to appeal was identified under the Civil Procedure Rules 1998, paragraph 52.15(3).

• Court of Appeal (Civil Division): Permission to apply for judicial review granted under [2015] EWCA Civ 1237, instead of permission to appeal.
• Earlier decision: Mitting J had quashed the Secretary of State’s original decision, after which the decision was retaken.