63. As R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trust [2012] EWCA Civ 472 makes clear at [10]:

‘Another aspect of fairness is that it must present the available information fairly. In this case, because the JCPCT had to collect information from the centres to present the available information it would have to make clear to the centres what information it needed. A further aspect of fairness lies in the presentation of the information on which the views of consultees should be sought. The options for change must be fairly presented. Nonetheless, a decision-maker may properly decide to present his preferred options in the consultation document, provided it is clear what the other options are: Nichol v Gateshead Metropolitan Borough Council (1988) 87 LGR 435.’

As part of presenting information in a clear way, the decision maker may present his preferred option. Part of the available information to be presented to the public may be alternative options for change. What is an alternative option will depend on the factual and context specific circumstances of the consultation in question.

64. The case of Robson [2015] EWCA Civ 6 concerned a consultation exercise by Salford City Council to close its passenger transport unit which provided a transport service for disabled adults between their homes and adult day centres and to make alternative transport arrangements. The closure formed part of a package of cost cutting measures and was budgeted to save £600,000 a year. The consultation exercise was criticised on the basis that the information contained in the consultation booklet was materially misleading, that it presented an incomplete picture by concentrating on the users of the passenger transport unit service to see if alternative transport options could be used. The Court of Appeal found that what was important was the type of transport arrangements made in the case of service users. To do that regard had to be had for the wider picture. When that was done there had been no significant misleading of the consultees which was the case in Moseley.

65. The case of R (L and P) v Warwickshire CC [2015] EWHC 203 (Admin), (2015) 18 CCLR 458 confirms the political nature of budgetary considerations and how a court has to be cautious about trespassing over the line which is the boundary of a democratically made decision. The case before Mostyn J involved cuts to be made to the integrated disability service which would be implemented when its ‘local offer’ to set out social care services was approved. Mostyn J found that the case did not come remotely close to conspicuous unfairness amounting to an abuse of power. It was a case where the budget was regularly and constitutionally set by a local authority in the present climate of austerity. All democratic procedures and safeguards were followed. That ground of challenge failed on the basis of delay but, had he considered the merits, Mostyn J said that he would have found firmly against the consultation exercise being unfair.

66. The case of T (supra) was a challenge to budget cuts made to Trafford’s adult social care budget which, it was contended, directly affected the claimant who had a diagnosis of autism and learning disabilities, was extremely vulnerable and would be at risk should any of his support be reduced. The issue was whether the defendant was under a common law duty to include information about realistic alternative options in its consultation on the proposed cuts to adult social care. Stewart J emphasised at [32(iv)] and [32(v)] in commenting on the decision in Moseley:

‘(iv) (paragraph 27) ‘Sometimes, particularly when statute does not limit the subject of the requisite consultation to the preferred option, fairness will require that interested persons be consulted not only upon the preferred option but also upon arguable yet discarded alternative options.’(v) (paragraph 28) ‘But, even when the subject of the requisite consultation is limited to the preferred option, fairness may nevertheless require passing reference to be made to arguable yet discarded alternative options.’ He then refers in support of this to two authorities, one of which is the Royal Brompton case.’

67. In the circumstances of the case before him Stewart J concluded that fairness did not require consultation on arguable but discounted alternative options. Where there was an intention to have public participation in the decision making process and its context was one with which the public may not be familiar fairness can sometimes require that a consulting body consult upon possible alternative ways in which a specific objective might be capable of being met but that was not a general principle. The defendant had considered carefully increasing council tax and using Council reserves and there was information available to some extent as to why that was rejected. There was a real doubt in the case before Stewart J that an indication of alternatives, what they might be and why they had been discarded would have made any real difference. The Local Authority was entitled to consult on its preferred option and the best way to achieve that but was not under any duty to do more.

68. After the decision in Moseley it is clear that the issue of fairness in a consultation exercise is very context specific. The three cases that the claimant refers to illustrate that point. The case of T is the most similar to that before me but given that all judgments have turned on their factual context I cannot derive any universal principle or principles of application that assist here. That being the case I turn to the application of the law to the facts in the specific consultation exercise carried out.