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

The claimant sought judicial review of the Secretary of State's reconsideration decision of 25 July 2013 which confirmed the earlier November 2010 approach to carry-forward of capital grants under the Sure Start Early Years Children Grant. The principal legal issues were whether the Minister acted irrationally in applying the same criterion used in 2010 (funding "contractually committed" by the cut-off date), whether he acted unfairly or inconsistently in relation to exceptions, whether his decision was inadequately reasoned, and whether he failed to discharge the public sector equality duty under section 149 of the Equality Act 2010.

The court held that the Minister lawfully and rationally applied the same criterion for all local authorities (contractual commitment by the cut-off date), that there was no requirement to make fresh reasoned exceptions on reconsideration, and that the decision letter and accompanying material provided adequate reasons to an informed reader. The court also found that the equality impact assessment and the Minister's consideration satisfied the s.149 duty in the circumstances. Accordingly the claim for judicial review was dismissed.

This is a first instance judicial review of the Secretary of State's July 2013 decision following an earlier judgment of Mitting J ([2012] EWHC 1460 (Admin)) which quashed the Secretary of State's November 2010 decision only for failure to discharge duties under the Equality Act 2010 and directed a limited reconsideration. Essex sought quashing again of the 2013 decision and further reconsideration, alleging irrationality in the criteria applied to carry-forward of capital grant, inconsistency and unfairness in making exceptions, inadequate reasons, and failure to discharge the public sector equality duty.

Background:

• The grants at issue were capital elements of the Sure Start Early Years Children Grant, offered under the discretionary power in section 14 of the Education Act 2002.
• The relevant policy permitted local authorities to carry forward unspent capital only where funding was "committed" by a cut-off date (identified as 7 July 2010, extended for Essex to 29 July 2010).
• Essex had used a different delivery mechanism, paying providers who then contracted with builders; the factual question was whether payments promised to providers by the cut-off date rendered Essex's funding "committed".

Procedural posture: The claim was issued in October 2013 after the Secretary of State reconsidered in July 2013 and confirmed the 2010 approach. Permission to pursue the present grounds had been granted by Sir Stanley Burnton in October 2015.

Issues framed by the court:

1. Whether the Minister's decision to adhere to the original criterion (contractual commitment by cut-off date) was irrational in light of the fact that projects were completed by March 2011;
2. Whether the Minister acted unfairly or inconsistently in failing to make exceptions on reconsideration;
3. Whether the decision and supporting materials gave adequate reasons;
4. Whether the Secretary of State complied with the public sector equality duty under section 149 of the Equality Act 2010 (including whether age was improperly ignored).

Court's reasoning (concise):

• Rationality: The court concluded it was rational for the Minister to apply the same criterion uniformly to all local authorities; the decision was a discretionary allocation of carry-forward and consistency justified adherence to the contractual commitment test.
• Exceptions: The Minister was not required to make fresh reasoned exceptions when he was not resiling from previously funded items; the factual basis for prior exceptions (tenders returned before cut-off) explained apparent discrepancies and justified the approach taken.
• Reasons: The decision letter and the officials' submissions were sufficient for an informed reader to understand the principal controversial issues and the conclusions reached; Essex could not show substantial prejudice from any alleged lack of particularity.
• Equality duty: The reconsideration included a detailed equality impact assessment and demonstrable consideration of s.149 duties; the assessment's statement that "no relevant issues arose" in relation to age was appropriately read in context and did not amount to failure to have due regard.

Relief sought: quashing of the July 2013 decision and a further reconsideration. The court dismissed the claim and refused relief.

The claim is dismissed. The judge held that the Minister lawfully applied the same contractual-commitment criterion to all local authorities, that no inconsistency or requirement to make new reasoned exceptions arose on reconsideration, that the reasons and officials' material were adequate for an informed reader, and that the Secretary of State properly considered and discharged the duty under section 149 of the Equality Act 2010.

The judgment records an earlier judicial review between the same parties decided by Mitting J on 17 May 2012 ([2012] EWHC 1460 (Admin)), which quashed the Secretary of State's November 2010 decision and directed reconsideration limited to compliance with section 149 of the Equality Act 2010. Permission to apply for judicial review of the 2013 decision was granted by Sir Stanley Burnton (sitting as a judge of the Court of Appeal) on 14 October 2015.