53. The claimants contend that the defendant was obliged at common law to undertake a proper consultation with those affected before taking the decision to withdraw the PTU service and replace it with individualised transport arrangements. The claimants contend that this duty is an aspect of the overarching common law duty to act in a procedurally fair manner. They rely on the decision of the Court of Appeal in R v Devon CC ex p Baker [1995] 1 All ER 73 in support of that proposition. They also draw my attention to the observations of Lord Reed JSC in Osborn v Parole Board [2013] 3 WLR 1020 at paragraphs 64–72 to emphasise first that fairness is for the court and not for the decision-maker to decide, and second his explanation of the benefits to be gained from procedurally fair decision-making. As to what is required in terms of consultation, they refer me to the well known statement of Lord Woolf MR, in R v North & East Devon HA ex p Coughlan [2001] QB 213 at paragraph 108, where he said that:

It is common ground that whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken: R v Brent LBC ex p Gunning (1985) 84 LGR 168.

54. They also refer me to the analysis of the Court of Appeal, given by Arden LJ, in R (Royal Brompton & Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472 at paragraphs 8–14. In particular they emphasise the requirement that the consultation document must present the issues in a way that facilitates an effective response, and in a way which is clear to the general body of consultees, the requirement that the available information must be presented fairly and not inaccurately, and that the unfairness need only be shown to affect a group of those affected by the consultation, as opposed to all of them.

55. Mr Greatorex in his submissions did not quarrel with the above as statements of principle. He also however emphasised paragraph 13 of the judgment in Royal Brompton, where Arden LJ referred to the observations of Sullivan J (as he then was) in the Greenpeace case, to the effect that clear unfairness must be shown, and that the error must show that there has been no proper consultation, and that something has gone clearly and radically wrong with the consultation process. He also referred me to the very recent decision of the Court of Appeal in Rusal v London Metal Exchange [2014] EWCA Civ 1271, where Arden LJ again summarised the law relating to consultation, and also stated (at paras 51–53) that the court should not ignore information which on the evidence was well known to the consultees anyway, even if not expressly referred to in the consultation document.

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62. I was taken by Mr Wise QC and Mr Suterwalla to section 149, who emphasised:

(1) the mandatory nature of the obligation imposed by the section; (2) the specific obligation to have due regard to the need to take steps to meet the different needs of (in this case) disabled adults from non-disabled adults and, in particular, to take steps which take account of disabled adults’ disabilities. As to point (2), they submitted that this was far from being a vague or a general exhortation, but a hard edged requirement to have regard to the need to identify how the needs of disabled adults differed from those of non-disabled adults and to ascertain what steps could and should be undertaken to meet those needs.

63. I was also referred by them to the decision of the Divisional Court in Brown v Secretary of State for Work & Pensions [2008] EWHC 3158 (Admin), where Aikens LJ: (a) held that the obligation to have ‘due regard’ meant to have proper and appropriate regard for the goals set out in the (predecessor) section (para 82); (b) held that in order to comply with that obligation it was necessary to have due regard to the need to gather relevant information (para 85); (c) identified a number of relevant principles as to how that duty should be fulfilled in practice, including a duty to exercise the duty in substance, as opposed to box ticking, with rigour and with an open mind (paras 90–96).

64. I was also referred by Mr Wise QC and Mr Suterwalla to the decision of the Court of Appeal in R (Bracking) v Secretary of State for Work & Pensions [2013] EWCA Civ 1345 and, in particular, the 8 relevant principles identified by McCombe LJ at paragraph 26 of his judgment. The claimants particularly emphasised: (a) principle 4, the need to assess the risk and extent of any adverse impact and means of elimination before adopting the policy and not as a rearguard action; (b) principle 6, the need to have specific conscious, as opposed to merely general, regard; (c) principle 8, the need for a proper and conscientious focus on the statutory criteria, and the need to make inquiry.

65. Mr Greatorex did not contest these principles. He did however remind me, by reference to these authorities, that it is a duty to have regard, not a duty to achieve a particular result, and that weight was a matter for the decision maker and not the court. He also referred me to the decision of the Court of Appeal in Bailey v Brent LBC [2011] EWCA Civ 1586, to the effect that: (a) the decision is a fact-sensitive one (para 83); (b) section 149 does not require the decision maker to speculate, investigate or explore ad infinitum, or to apply the degree of forensic analysis which a QC would deploy in court (para 102). He also submitted that, although recommended as advisable, there was no positive obligation to undertake or to record the result of a formal equality impact assessment, so that I should have regard to the totality of the process, and not limit myself to conducting a forensic analysis of the words used in the impact assessment.

66. Mr Greatorex also submitted that in a case such as the present, which was concerned exclusively with disabled persons, it could not possibly be said that the defendant had overlooked its duty to have due regard to the impact of its decision on disabled persons. Mr Wise QC and Mr Suterwalla countered by submitting that this illustrated the danger of adopting a general approach, as opposed to the focussed rigorous approach which was required, particularly by reference to the need to have due regard to the need to take mitigating steps.