CHAPTER 3
Consultation
Cases
3.11R v Devon CC and another ex p Baker and others [1995] 1 All ER 73, CA The fairness principle required local authorities to consult residents before deciding to close a care home. The court set out what type of consultation fairness required, in this context
3.12R v North and East Devon Health Authority ex p Pow [1997] EWHC 765 (Admin), (1997–98) 1 CCLR 280 The health authority had remained under a duty to consult despite a need for urgent action arising as a result of its own failures and its hospital closure decision would be quashed notwithstanding the practical difficulties that might ensue
3.13R v North and East Devon Health Authority ex p Coughlan [2001] QB 213, (1999) 2 CCLR 285, CA A consultation process, undertaken voluntarily, will be unlawful unless it complies with the ‘Gunning criteria’
3.14R v Powys CC ex p Hambidge (No 2) (1999) 2 CCLR 460, QBD The local authority was not under a duty to consult the user of home care services before increasing charges
3.15R (Haringey Consortium of Disabled People and Carers Association and others) v Haringey LBC (2002) 5 CCLR 422, QBD The relevant guidance created a legitimate expectation of consultation before a local authority reduced grants to local charities
3.16R (Smith) v East Kent NHS Hospital Trust and Medway Health Authority [2002] EWHC 2640 (Admin), (2003) 6 CCLR 251 A duty to re-consult only arises where there is a fundamental difference between the consultation proposals and the final decision
3.17R (Madden) v Bury MBC [2002] EWHC 1882 (Admin), (2002) 5 CCLR 622 A decision to close to care homes was quashed when the preceding consultation process had been unlawful, owing to Bury’s failure to disclose the true reasons for closure
3.19R (Haggerty) v St Helens Council [2003] EWHC 803 (Admin), (2003) 6 CCLR 352 Extraneous difficulties that limit a local authority’s freedom of manoeuvre can make it lawful to undertake a process of consultation that falls well short of the usual minimum
3.20R (Capenhurst) v Leicester CC [2004] EWHC 2124 (Admin), (2004) 7 CCLR 557 A voluntary consultation process, and the ensuing decision, were unlawful where the local authority had failed adequately to inform consultees of the factors that it would treat as important in reaching its decision
3.21R (Morris) v Trafford Healthcare NHS Trust [2006] EWHC 2334 (Admin), (2006) 9 CCLR 648 Although a consultation process resulting in the closure of in-patient wards had been unlawful, the court refused to grant relief in a case where the public authority proposed to re-consult
3.22R (Smith) v North Eastern Derbyshire PCT [2006] EWCA Civ 1291, (2006) 9 CCLR 663 Where consultation has been unlawful, relief may be withheld if it is proven that the result would inevitably have been the same
3.23R (Fudge) v South West Strategic Health Authority [2007] EWCA Civ 803, (2007) 10 CCLR 599 A statutory duty to consult remained in place even where the Secretary of State had taken over the function to which the duty to consult attached; but for pragmatic reasons, relief would be refused
3.23.1R (Elphinstone) v Westminster CC [2008] EWHC 1287 (Admin) A significant change to what had been proposed, after consultation ended, had not been a fundamental change requiring re-consultation because it had not been a change of a kind such that it would be conspicuously unfair to proceed without further consultation
3.24R (Eisai Ltd) v NICE [2008] EWCA Civ 438, (2008) 11 CCLR 385 Fairness required full disclosure of a computer model on which decision-making was based so as to permit the consultee to seek to undermine the validity of the model; considerations of administrative difficulty should not usually outweigh what fairness requires
3.25R (Boyejo) v Barnet LBC [2009] EWHC 3261 (Admin), (2010) 13 CCLR 72 Consultation was unlawful when the decision had already been made, it did not canvass alternatives, did not sufficiently involve consultees and gave insufficient time
3.26R (W) v Croydon LBC [2011] EWHC 696 (Admin), (2011) 14 CCLR 247 A statutory consultation process, with the parents of an incapacitated adult, was unlawful where the consultees had been afforded insufficient time
3.27R (G) v North Somerset Council [2011] EWHC 2232 (Admin) North Somerset had not acted unlawfully in deciding to cut the amount of direct payments and replacing direct payments with a managed care service
3.28R (Buckinghamshire CC) v Kingston upon Thames RLBC [2011] EWCA Civ 457, (2011) 14 CCLR 426 A local authority was not under a statutory or common law duty to consult with another local authority before placing an individual in its area, even though that would result in a financial and administrative burden on that other local authority
3.29R (W) v Birmingham CC [2011] EWHC 1147 (Admin), (2011) 14 CCLR 516 Unclear and inadequate information resulted in the consultation process being unlawful
3.30R (South West Care Homes Ltd) v Devon CC [2012] EWHC 1867 (Admin) Although failures in the consultation process were not academic, and the process had been unlawful, relief would be refused in the exercise of the court’s discretion, for pragmatic reasons
3.31R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of PCT [2012] EWCA Civ 472 The Court of Appeal re-stated the consultation principles, including that the courts will usually only grant relief where ‘something has gone clearly and radically wrong’
3.32R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, (2013) 16 CCLR 479 Consultees had had an adequate opportunity of explaining the likely effect of what was proposed on them and that was sufficient, in this case
3.33R (T) v Sheffield CC [2013] EWHC 2953 QB, (2013) 16 CCLR 580 In assessing whether a consultation process was lawful, it is necessary to have careful regard to the context and all the circumstances
3.34R (D) v Worcestershire CC [2013] EWHC 2490 (Admin), (2013) 16 CCLR 323 On analysis, the information provided to consultees had been accurate
3.35R (LH) v Shropshire Council [2014] EWCA Civ 404, (2014) 17 CCLR 216 It was legitimate to consult on macro policy changes first but it was then necessary to consult beneficiaries of specific services that might be closed; in this case, although consultation had been unlawful, relief would be refused for pragmatic reasons
3.36R (Michael Robson) v Salford CC [2013] EWHC 3481 (Admin), (2014) 17 CCLR 474 The court summarised consultation principles and concluded that, in substance, consultees had been adequately informed about what was proposed
3.37R (Moseley) v Haringey LBC [2014] UKSC 56 In the circumstances of this case, it had been unlawful to consult on the basis that there was no alternative, when there were alternatives
3.38R (McCann) v Bridgend CBC [2014] EWHC 4335 (Admin) In this context, a duty to consult on alternatives to the decision proposed was imposed by the statutory code, rather than the common law
3.39R (Michael Robson) v Salford CC [2015] EWCA Civ 6 The consultation materials lacked clarity but overall consultees must have known what the proposal was and what the alternative were, so that the process had been fair
3.40R (Forge Care Homes Ltd) v Cardiff and Vale University Health Board [2015] EWHC 610 (Admin), (2015) 18 CCLR 39 Local Health Boards had not been under a statutory or common law duty to consult before amending their payments to care homes in respect of the tasks undertaken by registered nurses
3.41R (JM and NT) v Isle of Wight Council [2011] EWHC 2911 (Admin), (2012) 15 CCLR 167 A flawed consultation resulted in decision-makers having inadequate information about risk and consequently not have ‘due regard’ to the needs in the PSED
3.43R (L and P) v Warwickshire CC [2015] EWHC 203 (Admin), (2015) 18 CCLR 458 Consultation was not required prior to making the annual budget and, in any event, the application for judicial review was out of time. A consultation process will only be unlawful because of unfairness where ‘something has gone clearly and radically wrong’
3.42R (T) v Trafford MBC [2015] EWHC 369 (Admin) It is not always necessary to consult about alternative options
3.44R (Morris) v Rhondda Cynon Taf CBC [2015] EWHC 1403 (Admin), (2015) 18 CCLR 550 Fairness did not always require consultation on alternatives and, where it did, the duty applied to realistic alternatives only
3.45R (Sumpter) v Secretary of State for Work and Pensions [2015] EWCA Civ 1033 A consultation process is fair if, ultimately, consultees can be expected to have understood the issues and the relevant factors
3.46R (Tilley) v Vale of Glamorgan Council [2015] EWHC 3194 (Admin) It was not unfair to fail to consult on an alternative that was not realistic and signposting consultees to additional information had been, on the facts, fair
3.47R (Keep Wythenshawe Special Limited) v NHS Central Manchester Clinical Commissioning Group [2016] EWHC 17 (Admin), (2016) 19 CCLR 19 In assessing whether consultation was lawful, it is relevant to take into account the particular role that consultation is playing in the decision-making process