Nottingham City Council, Luton Borough Council and Waltham Forest in London have launched judicial reviews against education secretary Michael Gove’s decision to scrap the building schools for the future (BSF) programme.
The councils are expected to argue that they acted on a legitimate expectation that central funding would be forthcoming.
Waltham Forest said it had spent around £17m “driving the scheme forward” and its cancellation was having a “devastating impact” on thousands of young people.
In a letter to Gove following his announcement scrapping BSF in July, the council said one of its schools was only days away from moving to a new site.
“We’ve gone about this the right way and we’ve tried to come to a reasonable agreement with the government,” Waltham Forest council leader Chris Robbins said.
A spokesman for Nottingham City Council said the council would argue that it had acted on a legitimate expectation, since the outline business case for three school-building projects had been approved in February and that Gove’s decision was irrational, because it was based on the arbitrary cut-off date of 1 January.
He said the council would ask for the decisions on its school projects to be quashed and for its schemes to receive the promised funding.
David Mellen, the council’s portfolio holder for children services, said the council “would have much preferred a negotiated solution”.
Ward Hadaway is acting for Nottingham and Luton councils.
Laura Hughes, solicitor in the education team at Browne Jacobson in Nottingham, said the councils would argue that they had relied on a promise of funding from central government to their detriment.
She said the courts would not order the government to make good its promise unless it was in the public interest, but could order it to pay compensation to the councils.
“For the councils, it’s a high-risk strategy,” Hughes said. “The courts can consider all the circumstances, including the financial crisis.”
Hughes said the three-month deadline for issuing judicial review applications had now passed, and any further challenges would have to come from councils whose building projects were subject to review.
“The government will fight these challenges tooth and nail,” she added.