Essex County Council v Secretary of State for Education

SIR STANLEY BURNTON: This is a renewed application for permission to apply for judicial review of a decision of the Secretary of State in which he refused retrospectively to permit carry forward of finance with one exception, the finance being required to initiate or to complete various projects for preschool or school buildings and facilities. The Secretary of State's original decision had been quashed by Mitting J. It was retaken by the Secretary of State and what is said is that the Secretary of State got it wrong second time.

Four grounds are put forward of varying significance. The one I shall mention relates to the exceptions that were made on the first decision but were refused in respect of the second decision. The basic criterion made by the Secretary of State was to take a cut off date, which was 29 July 2010, contrary to much of the documents before me, and to allow carry forward in cases in which building contracts had been concluded before that date. The refusal in general of carry forward apart from such cases was due to the importance of reducing government expenditure in the following year, 2010 of course being the date of the general election before the last new government came to power, and it became government policy to make significant reductions in government expenditure in order to reduce the budget deficit. The expenditure to which this case refers was expenditure which was subject to reduction.

On the face of it, that criterion is not only a rational one but a sensible one. It is challenged now because one of the reasons given first time round for adopting that criterion was that it would be a predictor of not only expenditure incurred, but of projects completed by a specified date. That, it is said, was inapplicable the second time round, because by then all the projects had been completed and so no predictor was necessary; one knew what expenditure had been incurred by that second date. It seems to me that that does not affect the applicability of the criterion adopted second time round, but for reasons I shall give in a moment, I shall allow this judicial review to go forward on that ground among others.

The reason I do so is that I do consider that there is an arguable case in relation to the various exceptions which were refused second time round. I say that for a number of reasons. One is that there seems to be a discrepancy between the decision first time round to make an exception and some of the exceptions put forward the second time; that is to say reasons were given the second time which were identical to the reasons given for permitting an exception first time round, and no explanation was really given by the Secretary of State as to why the exception was sensible and applicable the first time round but not the second time round.

Moreover, the documents I have seen do not really address the council's case for the making of an exception in relation to the specified projects which it put forward as deserving of an exception. To the contrary, a reason is put forward for rejecting them which had not been alerted to the council. It seems to me that there is an arguable case, whether it is a reasons case, whether it is a fairness case, whether it is a rationality case, in relation to those matters, and for that reason I shall give permission to apply for judicial review.

There are two other grounds put forward. One, there is the reasons challenge. My initial view which I expressed was that that was not a good challenge, but for my own reasons, which I have just put forward, I am going to allow that ground too. I have considerable doubt about the fourth ground, which is a failure to comply with the statutory requirement in respect of equality assessments, but it seems to me it is a very short point, and given that I propose to grant permission, I shall extend it too.

Therefore I grant permission to appeal. If I remember rightly I can also grant permission to apply for judicial review, is that right?

MR SHARLAND: Yes, my Lord, I think it is not in addition, it is instead. Your power is in paragraph 52.15 of the CPR, particularly subparagraph 3, which says on an application for permission to appeal the Court of Appeal may instead of giving permission to appeal give permission to apply for judicial review.

SIR STANLEY BURNTON: Well it is ridiculous to give you permission to appeal and then go to the Court of Appeal and then they say, "Yes, you can apply for judicial review."

MR SHARLAND: Yes.

SIR STANLEY BURNTON: So I will give you permission to apply for judicial review. I am not minded to retain it in the Court of Appeal.

MR SHARLAND: I am not suggesting it should be retained, my Lord, no. I am very grateful.