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
Facts: Shropshire consulted widely on a policy change, that would lead away from the provision of day centres and focus on individualised budgets, in order to make necessary budgetary savings and, also, to promote central government policy. Afterwards, Shropshire identified a number of day centres that would actually have to close.
Judgment: the Court of Appeal (Longmore, McFarlane and Lewison LJJ) held that Shropshire had been under a common law duty to consult, by reason of its duty to act fairly. The consultation it had undertaken was amply sufficient to justify its policy change, but fairness also required there to be consultation before making a decision to close an individual day centre and that had not occurred. However, given the closure of the day centre and the dispersal of its staff, the only relief granted would be declaratory:
28. … From this it emerges that the duty to consult will arise when a person has an interest which the law decides is one which is to be protected by procedural fairness. Dillon LJ’s reference (85F) to the observations of Deane J in Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 93 ALR 51, 52–3 together with his own remarks about fairness (86E-G) show that he essentially agreed with this analysis.
29. Once one appreciates that this is the source of the common law duty to consult, it must be apparent that not only is the question whether LH had an interest entitled to be protected by procedural fairness a question for the court but so also is the question whether the procedure adopted by the Council was a fair procedure. Fairness is a matter for the court not the Council to decide. If fairness requires the Council to consult about individual closures, then the Council cannot say that it can choose a method of consultation which by-passes the question whether an individual day centre should be closed.
30. Having said that I would, for my part, accept that provided the Council consults with the staff, users and relatives of a particular day centre which is to be closed, the extent to which the Council may choose to consult more widely, eg with the staff, users and relatives of other day centres in the country is essentially a matter for the Council. No doubt, if consultation with users of one day centre led to the conclusion that that day centre would not close but that another would, there would a duty to consult the users of that other day centre. But save to that extent, the principle enunciated by Clarke LJ may well be applicable, as I think Simon Brown LJ would accept in the light of what he said at page 91E-F in the Devon and Durham case.