R (on the application of ESSEX COUNTY COUNCIL) v SECRETARY OF STATE FOR EDUCATION (2016)

R (on the application of ESSEX COUNTY COUNCIL) v SECRETARY OF STATE FOR EDUCATION (2016)
Keywords: PSED, irrationality

This judgement follows on from R (on the application of ESSEX COUNTY COUNCIL) v SECRETARY OF STATE FOR EDUCATION [2012]. In the earlier judicial review, Essex CC were successful in arguing that a decision by the secretary of state reduce the amount of funding for the building of schools and nurseries (including access projects) that could be carried forward into the following financial year had been made unlawfully due to insufficient consideration of the disability equality impact (under the legislation which existed at the time). The court required that the decision be remade in compliance with the Public Sector Equality Duty (PSED) s.149 Equality Act 2010 (which had come into force in the interim). It is worth noting, however, that, even in the earlier case, arguments on the grounds of irrationality and lack of consultation had failed.

In accordance with the earlier judgement, the secretary of state undertook a full equality impact assessment exercise and subsequently reconsidered the matter and made a fresh decision. In the current case, Essex sought to argue that the second decision was also unlawful on grounds of irrationality; lack of fairness (in the approach to the making of exceptions); inadequate reasoning; and failure of comply with the PSED.

Again, it was held that the decision was irrational, nor was it unfair, nor was there inadequate reasoning. In all of these areas, the judgement upholds the general reluctance of the courts to interfere by means of judicial review in the decisions of government without clear evidence of very serious failures in decision making processes.

In relation to the PSED, the judgement comments that “Unsurprisingly, in view of the outcome of the first judicial review  and the language of the order, the  reconsideration  by the Minister is  replete  with consideration of his public sector equality duty”. It was contended on behalf of Essex that the secretary of state had failed to have due regard to the protected characteristic of age because the Equality Impact Assessment had stated “No relevant issues”, whilst the funding being withdrawn by the decision related to services for pre-school children and their parents. The decision had been made in the context of a national programme of cuts to public spending in which it had been decided to withdraw funding for these services nationally. However, the specific decision at issue related to the application of that policy in Essex’s case and there was no evidence that groups of people in Essex in particular age groups would have suffered a disproportionate adverse impact in comparison with the position nationally. Therefore, this argument was rejected. It was held that secretary of state’s decision complied with the requirements of the PSED.

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