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

A public authority reconsidering a quashed decision must take account of all relevant facts and circumstances known at the date of reconsideration. It may lawfully retain a consistent criterion previously applied across comparable cases, particularly where departing from it would confer unjustified favourable treatment. A reasons challenge requires intelligible and adequate reasons addressing the principal controversial issues, together with substantial prejudice. The public sector equality duty requires demonstrable and conscientious consideration of relevant protected characteristics, but an assessment is not defective merely because a characteristic is recorded as raising no issue specific to the decision under review.

Essex County Council challenged the Secretary of State’s July 2013 reconsideration of an earlier decision concerning the amount of Sure Start Early Years Children Grant capital funding that could be carried forward. An earlier judicial review had quashed the 2010 decision for failure to comply with the equality duty under section 149 of the Equality Act 2010, while leaving the other challenges unsuccessful and directing a limited reconsideration.

Essex argued that the 2013 decision unlawfully retained the original contractual-commitment criterion, dealt inconsistently with exceptions, gave inadequate reasons, and failed again to comply with section 149. The central issues were whether the reconsideration was rational and procedurally lawful, and whether the equality assessment adequately addressed age and other protected characteristics.

1. Claim dismissed. The Secretary of State’s decision to confirm the original funding criterion was lawful. The decision concerned a discretionary payment, not an entitlement, and it was rational to apply to Essex the same contractual-commitment criterion applied to all other local authorities. Paying for projects which Essex voluntarily continued after the cut-off date would have treated Essex more favourably and would have been unfair to the other authorities.
2. On reconsideration after a quashing order, the decision-maker had to take account of all relevant facts and circumstances known by the date of the fresh decision. He could not simply recreate the position at the date of the original decision. It was unnecessary to determine the precise scope of the earlier quashing order because the Secretary of State had in fact reconsidered the matter afresh.
3. The challenge concerning exceptions was misconceived. The Secretary of State made no reasoned exceptions in 2013, apart from the marginal Dizzy Ducks case. The earlier exceptions were retained as a favourable decision not to reduce funding, rather than as new exceptions requiring separate reasoning. In any event, the relevant distinction concerned tenders returned before the cut-off date, so no inconsistency was established.
4. The reasons were adequate under the approach stated by South Buckinghamshire DC v Porter (No 2) [2004] UKHL 33. The informed reader could understand that consistency with the treatment of other authorities was the essential reason. Even if there had been some deficiency, Essex could not show substantial prejudice.
5. The Minister had conscientiously and demonstrably discharged the public sector equality duty under section 149 of the Equality Act 2010. The assessment addressed the relevant protected characteristics and the effects on children, parents or carers and nursery staff. Recording that no relevant issue arose concerning age meant that no Essex-specific issue arose, not that the general age-related impact had been ignored. The guidance in R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 was not inconsistent with that conclusion.

1. Court of Appeal: Sir Stanley Burnton granted permission to apply for judicial review on all grounds on 14 October 2015.
2. High Court (Administrative Court): The substantive claim was dismissed after the court rejected all four grounds of challenge.