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Secretary of State’s decision to cancel Building Schools for the Future funding quashed


Mr Justice Holman has quashed the decision of the Secretary of State for Education, Michael Gove MP, to cancel funding for schools under the Building Schools for the Future programme. The Secretary of State will now be required to reconsider his decision to revoke some £1 billion of anticipated schools funding.

The BSF programme, which commenced in 2003, had aimed to rebuild or refurbish schools across the entire secondary school estate. Each of the six claimant local authorities, Luton Borough Council, Nottingham City Council, Waltham Forest London Borough Council, Newham London Borough Council, Kent County Council and Sandwell Metropolitan Borough Council, had built schools with funding received under the BSF programme, and had further schools in various stages of development.

Following the General Election, the Secretary of State decided to cancel the BSF programme, describing it as "wasteful" and "dysfunctional". However the programme was not cancelled altogether. The Secretary of State adopted what he described as "rules-based criteria" that would determine which schools would be "stopped" and which would be "saved". With the exception of academies (a political priority for the new Government), all of the claimants' schools were "stopped".

The claimants alleged that, in making his decision, the Secretary of State had failed to conduct proper consultation, to consider their individual circumstances and to comply with his duties under the Disability Discrimination Act 1995 and the Race Relations Act 1976. They also contended that he had acted irrationally and had breached their legitimate expectation that funding would continue.

Holman J concluded that the Secretary of State had acted unlawfully in failing to consult the claimant local authorities and to consider their individual circumstances on a case-by-case basis. He held that his decision was "so unfair as to amount to an abuse of power". Furthermore, he found that the Secretary of State had failed to comply with his equality duties. He was "simply not satisfied that any regard was had to the relevant duties at all, let alone rigorous regard". However, he held that the claimants did not have a substantive legitimate expectation that their funding would continue, and that it could not be said that the Secretary of State had acted irrationally.

The Secretary of State will now be required to reconsider his decision "with an open mind", on a case-by-case basis, and after allowing the claimant local authorities an opportunity to make representations as to why their schools should continue to receive funding. He must also take fully into account the equality implications of his decision.

The judgment is here.

Jemima Stratford QC and Oliver Jones appeared for Waltham Forest London Borough Council.  Martin Chamberlain also acted for Waltham Forest, but was unavailable for the hearing.

Harry Matovu QC and Tony Singla appeared for Kent County Council.  Alan Maclean QC also acted for Kent, but was unavailable for the hearing.