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
Facts: the claimants were service users from voluntary organisations who faced a funding cut, after a change of political control at Leicester. The new criteria were that Leicester would only fund bodies that delivered certain core services. Leicester undertook consultation, but the claimants contended that they had not been properly consulted.
Judgment: Silber J allowed the application for judicial review. Whether or not Leicester had been under a legal duty to consult, once consultation was undertaken, it had to be conducted lawfully. In this case, Leicester had not achieved that, because it had failed to make consultees aware of the criteria to be adopted and what factors would be considered decisive or of substantial importance:
46. It is important that any consultee should be aware of the basis on which a proposal put forward for the basis of consultation has been considered and will thereafter be considered by the decision-maker as otherwise the consultee would be unable to give, in Lord Woolf’s words in Coughlan, either ‘intelligent consideration’ to the proposals or to make an ‘intelligent response’ to it. This requirement means that the person consulted was entitled to be informed or had to be made aware of what criterion would be adopted by the decision-maker and what factors would be considered decisive or of substantial importance by the decision-maker in making his decision at the end of the consultation process.
47. I do not think that a consultee would not have been properly consulted if he ought reasonably to have known the criterion, which the decision-maker would adopt or the factors, which would be considered decisive by the decision-maker but that the only reason why the consultee did not know these matters was because, for example, he had turned a blind eye to something of which he ought reasonably to have been aware. Thus, consultation will only be regarded as unfair if the consultee either did not know the criterion to be adopted by the decision-maker or ought not reasonably to have known of this criterion. Of course, what a consultee ought reasonably to have known about the factors, which will be considered decisive by the decision-maker depends on all the relevant circumstances, which may well be different in each case.