West Law Report


Posted in Westlaw Reports by mrkooenglish on July 16, 2008

Last Updated: 3:17PM BST 09/07/2008
Queen’s Bench Division (Admin)

Burnett J

June 26, 2008

Breach – Decision-making – Grants – Higher Education Funding Councils – Terms and conditions – Recovery of research support grants – Breach of terms and conditions – Fairness of decision-making process – s. 65(4) Further and Higher Education Act 1992


The claimant university applied for judicial review of a decision of the defendant Higher Education Funding Council for England to recover from the university a total of £852,000 of research support grant funds. The council had made the recovery on the basis that the university was in breach of the terms or conditions applicable to obtaining the grant. The government had made funds available to augment those provided by charitable institutions for medical research on the basis set out in a framework document, which included a requirement that the charitable grant was the subject of open competition.


(i) Whether it was for the court to determine as a primary fact-finder whether the university was in breach of the material terms and conditions of the grant or whether that was a question for the council subject to traditional public law grounds of review.

(ii) What the meaning of the term “open competition” in the relevant policy and documentation was.

(iii) Whether the decision-making process was fair.

(iv) Whether the decision to recover the money was taken by somebody properly authorised to do so.

(v) Whether the decision-maker appreciated that there was a discretion whether to recover all or part of the sum in the event that a breach was established.

(vi) Whether the court should, in its discretion, grant any relief even if an error of law was established.

HELD (judgment accordingly)

(1) The question of a failure to comply with a term or condition on which money was provided by the council did not call for the application of the precedent fact approach. The reality was that even where Parliament had not used subjective language, it was the exception rather than the rule that factual matters would fall within the precedent fact category leading the court to take on the primary fact finding role. It was most unlikely that Parliament intended that disputes about compliance with terms and conditions should be determined by a court as a primary fact-finder. One purpose of the Further and Higher Education Act 1992 s. 65(4) was to enable the council to recover the money without the need for a private law action.

(2) It was evident that something could not be described as “open competition” if individuals or bodies who appeared to have the necessary skills to carry out the work were not able to compete for the funding. On the evidence the Council was entitled to conclude that the basis upon which the funds were made available to the university did not satisfy the criterion for “open competition”.

(3) The exchanges between the council and the university did not evidence a closed mind or otherwise support the contention that the procedure followed was unfair. The council did consider the points raised by the university.

(4) The scheme of delegation authorised the chief executive to make a decision concerning payment. However, the evidence showed that the chief executive did not make the decision as he should have done within the scheme of delegation.

(5) Because the chief executive did not make the decision in question, the issue of whether he appreciated that he had a discretion whether to recover any or part of the overpayment did not, strictly speaking, arise.

(6) The instant case was on in which the legislation required a scheme of delegation if the council itself was to be relieved of the decision making. The council put in place a scheme of delegation which was not followed. Where a discretionary decision had been taken by someone not authorised to do so, such as in the instant case, the decision should be quashed and remitted to the correct decision maker, in the instant case the chief executive, to consider the matter.

Charles Bear QC and James McClelland (instructed by Eversheds) for the claimant. Michael Beloff QC and James Maurici (Beachcroft LLP) for the defendant.


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