Whether relief should be granted
51. I do not accept the suggestion, in so far as it was made at the hearing before me, that the breach of the duty of consultation in this case was academic, in the sense that consultation would have made no difference to the outcome. In that regard I note what was said by the Court of Appeal in R (Smith) v North Eastern Derbyshire Primary Care Trust [2006] 1 WLR 3315. That was a consultation case where the learned judge at first instance had proceeded at the remedial stage on the basis that if representations had been made by the claimant, they ‘probably would have made no difference’. However, the Court of Appeal held that probability is not sufficient. As May LJ said in the main judgment at paragraph 10:
‘Probability is not enough. The defendant would have to show that the decision would inevitably have been the same and the court must not unconsciously stray from its proper province of reviewing the propriety of the decision-making process into the forbidden territory of evaluating the substantial merits of the decision …’
Amongst the authorities cited for that proposition May LJ cited the important case of R v Chief Constable of Thames Valley Police ex p Cotton [1990] IRLR 344 at page 352, giving the judgment of Bingham LJ (as he then was). I would also note what Keene LJ had to say at paragraph 16 of the judgment in Smith.
52. Nevertheless, as the defendant submits, the court has a discretion whether to grant any remedy and, if so, what remedy. In particular, as the defendant submitted and appears to have been common ground before me, the court cannot ignore the question of possible detriment to good administration. This can arise potentially in one or both of two ways. The first is that it is expressly referred to by statute in section 31(6) of the Senior Courts Act 1981 which reads:
‘(6) Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant–
(a)leave for the making of the application; or.(b)any relief sought on the application.
if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.’
53. The second way, as the defendant submits, is that in any event, judicial review, quite apart from the questions of delay is always discretionary. One of the factors that the court will have to regard to in its discretion is the interests of good public administration (see R v Monopolies & Mergers Commission ex p Argyll Group Plc [1986] 2 All ER 257 at 266) in the judgment of Sir John Donaldson MR (as he then was) where he said:
‘Good public administration requires decisiveness and finality unless there are compelling reasons to the contrary.’
54. On the facts of the present case I accept the defendant’s submissions and, in the exercise of the court’s discretion, would not quash the decision which is under challenge. My reasons, in brief, are as follows: first, the relevant financial year has ended on 31 March 2012. It is obvious that many transactions including, as the claimants accepted, things such as Tax Returns will have been concluded and submitted in the meantime on the understanding that the defendant authority’s budget was as had been finalised in March and April of 2011 and would not be reopened now.
55. Secondly, there is a more specific type of detriment to others to which the defendants can point. This can be seen from paragraph 37 of the defendant’s detailed grounds in these proceedings where they said this:
‘A grant of relief in the present case, if it resulted in increase in care home fees for 2011/12 would cause a further and more specific detriment to good administration and hardship to third parties. At the suit of a small number of providers the defendant would have to find a very large sum overall, a windfall to those providers who appear to have been content with a decision. This in turn could necessitate recovery of the unpaid part of the increased fee from those who pay the full cost of their care through the local authority or from the relatives of those who have died in the interim. The alternative would be to place the burden on council tax payers … the potential for hardship and distress as well as administrative inconvenience and expense is obvious.’
This part of the defendant’s detailed grounds is supported by the witness statement of Jennifer Stephens, in particular paragraphs 37 to 38.
56. Thirdly, I accept the defendant’s submission that this case is now extremely stale. Even if one takes the view that the grounds for making the claim first arose on 4th April 2011, the claim was commenced just inside the three-month time limit, on 1st July, and sought to overturn a decision which was in effect taken on 2nd March 2011.
57. Even if there was no undue delay, something I will put to one side for the purpose of this consideration, the original grounds were in a form which in the opinion of Mitting J did not disclose a clear and arguable challenge. On the evidence before the court it would appear that the claimants did not have the matter expedited until November 2011, after refusal of permission on the papers by Mitting J. It was not until 2nd February 2012 that the claim was amended in a skeleton argument of that date, in a form which eventually obtained permission at the oral hearing before the learned deputy judge. By that time, as the defendants have submitted, the decision under challenge was already almost one-year-old.
58. As I have said, even if one puts to one side questions of delay, I have had regard to the principle in the Argyle case and accept the defendant’s submissions that it would be detrimental to the interests of good administration to grant a quashing order in this case.
59. The final matter which I have had regard to in the exercise of the court’s discretion is that, in any event, the views of the claimants on the question of fees and actual costs were well-known to the defendant. Although I have not accepted the defendant’s submission that that is sufficient to mean that the duty of consultation was complied with, it is nevertheless, in my view, one factor to be taken into account in the court’s exercise of discretion when it comes to the question of remedies.
60. For the claimants it was submitted that they do not seek a mandatory order requiring the court to order the defendant authority to increase the fees in question. The claimant submits that such an order would usurp the role of a public authority in making the relevant decision: so they submit the court should not hesitate to grant a quashing order. In my view, this argument is a little disingenuous, since the claimants wish there to be consultation with a view to achieving a real change in practice and not for academic reasons. If there is a real prospect of a change in practice then, in my view, for the reasons I have already given, there would be detriment to good public administration and, in the exercise of the court’s discretion, I would not grant a quashing order.
61. Nevertheless, I do not accept the defendant’s submission that I should refuse even declaratory relief. In my judgment it would be appropriate to grant a declaration in appropriate terms to reflect the terms of my judgment that I have accepted that the claimants succeed on their ground 3: there was an unlawful failure of consultation in the present case.
62. This would vindicate the rule of law. I note in that context the decision of Webster J in the AMA case, to which I have already made reference, at page 15. Granting a declaration can serve a valuable function in guiding future conduct. A declaration is a flexible and proportionate remedy: it can be tailored to fit the facts of the particular case before the court and to reflect the particular breach of public law which the court has identified. In that regard, I bear in mind the recent judgment of the Divisional Court in R (Hurley) and Another v Secretary of State for Business Innovation and Skills [2012] EWHC 201 (Admin), in particular at paragraph 99 (Elias LJ).