32. I have not found it easy to reach a decision on this issue. The lack of clarity in the Council’s internal documentation (see eg the description of the proposal in the report to Cabinet on 11 March 2014, quoted at paragraph 9 above) seems to have been carried over into the documentation prepared for the consultation. The consultation material presented an incomplete picture by concentrating on the proposed assessment of users of the PTU services to see if alternative transport options could be used, without a clear statement that it was proposed to close the PTU itself. In consequence, Mr Wise’s submission that the Council failed to consult on the closure proposal and/or that the consultation material was misleading has considerable attraction to it. In the end, however, I have reached the conclusion that that is too formalistic an analysis and that the judge was right to concentrate on the proposed change of approach to transport arrangements for existing users and to find that the consultation process as a whole was not unfair.

33. What was important for users and their carers was not the continued existence of the PTU as such – as I have said in the context of the assessment issue, it was possible to provide the same service by other means – but the type of transport arrangements made in their case. They can have been left in no doubt that the purpose of the proposed assessments was to see if the existing service through the PTU could be replaced in each individual case by alternative arrangements. It was implicit that the PTU service would be withdrawn from those who were assessed as able to use alternative modes of transport. The reality of all this was brought home by the information that almost one half of users of the existing service were already being helped to get alternative transport to meet their needs.

34. In order to determine whether consultees were misled or were not consulted about the actual proposal, it is also necessary to have regard to the wider picture. In my view the judge was entitled to find that Mr Clemmett’s witness statement was ‘not sufficient to establish that those who conducted the personal visits to make the assessments were specifically tasked with making it clear to the users and their carers that the proposal would involve the closure of the PTU …’. That finding did not involve the rejection of Mr Clemmett’s evidence, which was unchallenged. It was simply a finding that his evidence was insufficiently detailed and specific to make good such a conclusion. Mr Clemmett’s evidence taken as a whole (including the exhibited slides and media articles) does, however, provide some support for the view that consultees were aware that the proposal included closure of the PTU. The absence of any substantial evidence on behalf of the appellants that consultees were in fact misled is also highly material.

35. In Moseley the consultation material conveyed a positively misleading impression that other options were irrelevant. There is nothing equivalent to that in this case. In Moseley it was wrong to place reliance on consultees’ assumed knowledge of other options for the same reason, that the message conveyed by the local authority was that other options were irrelevant. Again there is no equivalent in this case, and in my view it was open to the judge to make the finding he did that any sensible reader of the consultation booklet would have understood that the proposal involved the withdrawal of the PTU service from those who were assessed as able to use alternative transport arrangements. More generally, there is nothing in Moseley to cast doubt on the correctness of the legal principles by reference to which the judge directed himself in this case. The judge’s conclusion on the fundamental question, that the consultation was fair, was in my view a proper one for him to reach.

…

44. Mr Wise submits that the judge was wrong to reject the claimants’ case on this issue. He took us through various passages of the Community Impact Assessment in order to illustrate his criticisms of it, covering the ground considered by the judge in the passages I have quoted from his judgment. For example, in Section A it is stated: ‘We have helped users and their families to decide how users can best reach their destinations. Full travel assessments identify any risks and the support needed to remove or mitigate them …’. Mr Wise submits that the actual assessments do not identify risks or the support needed to remove or mitigate them. He submits that Section C3, concerning the information from the consultation exercise, is hopelessly inadequate. For example, rather than containing an analysis of solutions, it refers to the need to take up points individually with people, should the proposal be agreed, ‘to see if there are adequate solutions in place to meet the required need’; and instead of setting out support plans, it states that individual support plans ‘would need to be in place for the 40 people concerned’ should the proposal be agreed. He submits that Section D does not analyse the negative impact on people with a disability, or how it will be reduced or eliminated, and he criticises the lack of an evidence base for the assertion that people ‘will have more choice, control and independence’; he also takes issue with the claimed absence of a negative outcome or impact for people on a low income. In relation to Section E he complains that it focuses on a reduction in the number of people needing specialist transport services where alternatives can be used, but it contains no analysis of negative impacts and in particular of circumstances where alternatives cannot be used.

45. In relation to the judge’s reasoning in the paragraphs of his judgment quoted above, Mr Wise submits that the action plan referred to in paragraph 67 was not the gathering of necessary information; and the consultation exercise to which the judge refers did not gather all the necessary information because it was about the wrong thing. He submits that Section C was merely a statistical exercise and does not show that the Council conducted a careful analysis of the results of the consultation exercise, as the judge states in paragraph 68. The judge’s reference to the process operating “at a relatively high level” is said to misunderstand the section 149 duty, which requires the matter to be approached with rigour. Mr Wise acknowledges that the case under section 149 does not call for a merits review but he stresses the nature of the procedural obligation under that section. He submits that, for reasons already touched on, the Council was not aware of the adverse impacts on disabled service users and could not therefore take steps to eliminate or mitigate them. For those and other reasons he argues that the judge was wrong to find that the Council complied with its section 149 duty.

46. For the Council, Mr Oldham makes the point that the case so advanced by Mr Wise goes significantly wider than the relevant ground of appeal, which asserts simply that the errors in relation to the assessment issue and the consultation issue ‘fundamentally undermined the Judge’s approach to whether the Respondent had lawfully discharged its PSED because the Respondent was not properly informed about the potential consequences of its decision’. He submits that the Council did enough to gather relevant information; there was no duty in law to carry out an impact assessment at all (see Brown), but in any event the Community Impact Assessment was sufficient and it was not necessary to consider all the individual assessments at this stage of decision-making. Even if the points about inadequacy of analysis are open to the appellants, there is no reason why the degree of analysis contended for should be necessary. The judge’s reasoning on this and on the PSED issue as a whole was correct.

47. I accept Mr Oldham’s submissions. In my judgment the Council did have due regard to the matters identified in section 149 in relation to the disabled adults potentially affected by the decision to close the PTU. That largely follows from the conclusions I have reached on the assessment issue and the consultation issue. Through the carrying out of individual transport assessments and a lawful consultation exercise, it had obtained sufficient information to discharge the duty of inquiry for the purposes of section 149. The information obtained was analysed in the Community Impact Assessment. It may be that the imperfections of that document went even further than was acknowledged by the judge, but in my view he was entitled to find on the basis of the document taken as a whole that the Council had proper regard to the section 149 matters. I do not accept the submission that a greater degree of analysis was required. The judge was also right to look at the matter more widely, as he did in paragraph 71 of his judgment, and to find that in its decision-making process as a whole the Council was evidently aware of the potential adverse impacts on disabled adult service users and was actively considering steps to meet the needs of such persons and to eliminate, reduce or mitigate those impacts. It seems to me that everything the Council did to ensure the discharge of its duty towards those persons under section 2 of the Chronically Sick and Disabled Persons Act 1970 1970 also helped to ensure the discharge of its public sector equality duty towards them. The case advanced by Mr Wise does appear to me to go wider than the relevant ground of appeal but even if the full width of the case is entertained it should in my judgment fail.