Councils and other public authorities need to watch their footing when consulting the public – particularly on unpopular budget cut proposals. Sometimes there will be a statutory duty to consult, sometimes not.

But, statutory or otherwise, if a public authority embarks on a consultation it must do so properly. And this means complying with the well-known Gunning principles – identified in R v Brent London Borough Council, ex parte Gunning, (1985) 84 LGR 168. These are that:

  • Consultation must be at a time when proposals are still at a formative stage;
  • The proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response;
  • Adequate time must be given for consideration and response; and
  • The product of consultation must be conscientiously taken into account in finalising any statutory proposals.

These were specifically endorsed by Lord Wilson in R (Moseley) v London Borough of Haringey [2014] UKSC 56 and noted as a ‘prescription for fairness’. There the council was found to have acted unfairly and so as to have prevented meaningful public participation in its decision-making process when consulting on its council tax reduction scheme. This was because (in a context with which the general public could not be expected to be familiar) the consultation document should have contained a brief outline of the alternative options and reasons for their rejection.

Conversely, however, in R (T) v Trafford Metropolitan Borough Council [2015] EWHC 369 (Admin) on 18 February, Stewart J rejected a challenge to Trafford Council’s consultation on proposed cuts to its adult care budget.

Background

The claimant was a disabled man (acting through his mother as litigation friend) who challenged the council’s consultation on proposals to cut its adult social care budget for 2015/16. The claimant contended that the council had failed to provide adequate information on alternatives to its proposal, which would result in a smaller funding reduction for adult social care services.

The alternatives suggested were increasing council tax and using money from council reserves. The claimant consequently sought: (a) a declaration that the consultation process was flawed; and (b) an order quashing the consultation process insofar as it concerned the proposed expenditure reduction on adult social care.

The council had in fact considered and rejected the alternatives proposed. As to council tax, this cannot be increased above 2% without holding a referendum (estimated by the council to cost £250,000). However, where councils do not raise council tax at all, the government has offered additional funding worth the equivalent of a 1% council tax increase. In the circumstances the council decided not to increase council tax.

The council’s director of finance had also advised against the use of reserves, which were already substantially committed, and since it would not be ‘sustainable to use the reserves to meet recurring day-to-day expenditure’.

The court noted that the council had (among other things) developed a website with a summary of each of the consultation proposals which stated that full proposals could be viewed in the budget report. There was also a page which listed the ways in which people could give feedback and a link to the report. Media briefings had taken place and a press release was issued and put on the council’s website and Twitter account.

The consultation documents were also available on the website. A range of other measures to promote the consultation included press ads, posters, emails and distribution of fliers.

Court decision

Stewart J noted as follows the two questions which the claimant had laid before the court:

  • Was the council under a duty of common law to include information about realistic alternative options in its consultation on proposed cuts to adult social care?
  • If so, did the council discharge its duty?

As to the first and the extent of the council’s duty in what (unlike Moseley) was a voluntary rather than a statutory consultation process, the court concluded that in this case ‘fairness did not require consultation upon arguable yet discarded alternative options’.

In coming to this view, Stewart J first considered the rationes decidendi of Moseley as expounded by Lords Wilson and Reed with the concurrence of Lady Hale and Lord Clarke. Lord Wilson had concluded that in the particular statutory nature of the consultation in Moseley it had been unfair and therefore unlawful for the council to present its option for meeting the relevant financial shortfall as being the only one.

In the circumstances, fairness required the canvassing of other options. Lord Reed had considered the consultation to have been unlawfully conducted since it had been inconsistent with the relevant statutory purpose of ensuring ‘public participation in the local authority’s decision-making process’.

In the instant case, Stewart J noted from Moseley that ‘sometimes fairness will require consultation upon discarded alternative options’. Not inevitably, however. And although the context of Moseley had certain similarities with the case before him, there were differences. For in Moseley ‘… the statutory consultation was about making people pay council tax when they were previously exempt from it’.

However, the ‘present case involves five different consultations on differing areas of the total budget, in circumstances where there has been no (pre) determination of how and where the detailed impact of budget reductions in any particular part will fall’.

Furthermore, per R (United Company Rusal plc) v The London Metal Exchange [2014] EWCA Civ 1271 (which was considered to remain good law) ‘there is no general principle that a minister entering into consultation must consult on all possible alternative ways in which a specific objective might arguably be capable of being achieved’. For it ‘… would make the process of consultation inordinately complex and time consuming if that were so’.

Stewart J considered that in ‘the circumstances of the present case’, including that material information ‘was available and discussed during the consultation to some extent, there is a real doubt as to whether such extra steps would have made any real difference’. He therefore concluded that ‘the council having chosen to consult, in my judgment they were entitled lawfully to present their preferred option and to consult on the best way to achieve that’.   

As to the second issue (whether the council had discharged its duty), Stewart J found that there had been  ‘… information in the public domain which enabled people to understand that the council did not consider that the increase in council tax and/or using reserves was a realistic option’. But while, if there had been a specific duty to consult on rejected options Stewart J would have found non-compliance, nevertheless since there was found on the facts to be no such duty then ‘the claim must fail’.

Comment

Local authorities forced to make difficult financial decisions affecting the services provided to groups and individuals are particularly vulnerable to public law challenges. For although judicial review cannot interfere with the substance of decisions, the courts can and do scrutinise the whole decision process in the light of established public law principles. These include the duty to act fairly and comply with the proper statutory purpose. Such cases are inevitably fact- and context-sensitive.

In this case (and subject to any appeal) Stewart J found that the council’s actions were sufficient to make its voluntary consultation lawful. But the actions of another authority in similar circumstances may on the facts be found to fall short. There can clearly be no magic bullet.

However, demonstrably strict and conscientious adherence to the Gunning principles (together with the public provision of sufficiently comprehensive information) should certainly assist.

Nicholas Dobson, Freeths

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