Consultation – backing no horses, and the importance of interim relief

9 April 2014 by David Hart KC

LH, R (o.t.a) v. Shropshire Council  [2014] EWCA 404 (Civ), Court of Appeal, 4 April 2014  – read judgment

Good advertisement for the flexibility of the common law, this case. This is because the duty to consult owed by a public body extends into all reaches of public law, from the regulation of a metal trading company (see my recent post here) to care centres and residential homes. Indeed it was in the context of residential home closures that the modern law got worked out. In the 1992 case of  ex parte Baker,  there had been a draft community care plan which had made no reference to the closure of individual homes, and which was followed up by a bolt from the blue – residents of one home only had 5 days’ notice that their home was to close.  

In none of these cases is there a statutory duty to consult – it is an aspect of common law fairness. 

The LH case concerns the closure of an adult care day centre. The question in LH was how to apply the principles in Baker to a rather more nuanced consultation approach, where closure of day centres in general was raised in consultation, but the closure of the specific day centre (Hartleys) was not.

The facts

LH is 63 and has learning difficulties. She lives with relatives, and until recently attended Hartleys two days a week and another centre on two further days. She had made long-standing friends at Hartleys. The Council had evidently spent a good deal of time and effort on consultation about changes, fuelled by a combination of budgetary constraints and encouragement from central Government to give disabled people their own personalised budget for spending on their disability. A flavour of what the consultation did or did not say can be got from a Q&A in a leaflet

“Q. Is my service closing? [opposite a picture of a day centre with a large question mark]

A As more people do things differently we will need less buildings….

Q. Are the buses going?

A. If there are less buildings there will be less buses.

Q. How are services changing?

A. Day centre buildings will be for people with the highest need….

Q. How can I stay safe if things change?

A. We will plan with you how this will happen…

Q. Can I go back to the day centre if things don’t work out?

A. This may not be possible but we will help you to find something that works better.”

One can understand why the Council would want to consult in these rather bland terms. It had not yet decided which centres it was going to close, but it wanted to raise the issue of closures generally, rather than in relation to a specific day centre. But, equally, the unfairness to those potentially affected will be apparent. These rather anodyne answers contrast with what in all fairness should be communicated – “Hartleys may close”, and the cynic may suspect that the Council was anxious to minimise  that sort of headline before it took the difficult and specific set of decisions raised by many budgetary cuts.

The duty to consult

Simon Brown LJ had summarised the law in the previous case of Baker. 5 days’ notice was wholly insufficient opportunity for residents to make such representations as they would have wished to make in favour of their home being kept open in preference to others. Residents did not need to be consulted individually, nor did they need to be informed of anything like the entirety of the material which would clearly be relevant to the Council’s eventual overall decision.

It would have been sufficient to consult the body of residents as a whole, notifying then of the need to close a proportion of the county’s homes and inviting them to indicate what particularly they saw as the merits of their home and what reasons they would wish to advance for its retention in preference to others.

The duty to consult arises out of the concept of legitimate expectation, occurring where the claimant has an interest in retaining some ultimate benefit which he hopes to retain, and that interest is one, again as Simon Brown LJ pointed out

that the law holds protected by the requirements of procedural fairness; the law recognises that the interest cannot properly be withdrawn (or denied) without the claimant being given an opportunity to comment and without the authority communicating rational grounds for any adverse decision.

The Court of Appeal in LH applied these principles, framed in the context of residential homes, to the closure of day centres, and, as the CA said, it is difficult to see that there should be any difference in principle between the two categories of case.

Consultation about what?

The next question was who should decide the method of consultation required to protect those legitimate expectations.

The Council said it was for it to choose what method of consultation to use and the court should not second-guess that choice unless it was unreasonable in a Wednesbury irrational sense.

The Court disagreed. Once one analysed the source of the common law duty to consult as being a legitimate expectation,

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.

Hence, if fairness required 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. But 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 e.g. with the staff, users and relatives of other day centres in the country would be essentially a matter for the Council.

Longmore LJ, who gave the only judgment of the CA, evidently had some sympathy with the Council, thinking it had taken a great deal of trouble to explain its reconfiguration of adult day care and, in particular, the application of personalised budgets. However, that was not enough:

 It has only mistaken its obligations at the last stage but, in the light of the law as I understand it to be, my own conclusion is that the omission to consult the users and relatives on the closure of Hartleys Day Centre before it was decided to close it was indeed unlawful.

There also was a Public Sector Equality Duty claim under s.149 Equality Act 2010, but the CA decided this added nothing. It succeeded if the common law claim won, and failed if the common law claim lost.

Remedies

So far so good for LH and her day centre. But in the end she achieved no more than a declaration of unlawfulness – a piece of paper.

Pending the adverse decision of the judge below (in November 2013), the Council had undertaken not to close the day centre or take irrevocable steps towards its closure save that the Council was entitled to accept voluntary redundancy already made and individuals were to be entitled to take up new services elsewhere than at the centre. This undertaking lapsed once the decision gone against LH in the Court below. No application was made for interim relief either to him or to Maurice Kay LJ when he granted permission to appeal.

The consequence was that, by the time the CA gave judgment last week,the centre had closed and all the staff dispersed.

This meant that the CA was in an unenviable position. Longmore LJ decided that it was not consonant to good administration to quash the closure decision or to order the Council now to conduct a consultation about its closure,

when the only purpose of so doing would be to enable it to consult people, who are not now using it. That would be an expensive and over-legalistic exercise which justice to LH does not require especially as there is no reason to suppose that the Council is not performing its duty to assist LH to find alternatives to Hartleys within her personalised budget.

So the real object of the litigation was not achieved.

Comment

This comes at the other end of the spectrum when compared to the Rusal metal trading case – where the LME only backed one horse. Here, the Council did not reveal which horses it was backing until after closure of the consultation. So the first message is that a Council must be up-front about what it might do when it consults on closures, or else it will have to carry out two-phase consultation – deciding, say, that two day centres costing £x need shutting over the County, and then consulting on which ones should be closed.

The second  message is obvious. Interim relief freezing the status quo pending the final decision is critical. This may not be easy, because it may involve trying to persuade a judge who has just ruled against you to freeze Council plans pending your appeal to the CA. But once you get to the CA and seek permission to appeal, you have to renew your application for interim relief, otherwise you end up, as here, winning the battle but losing the war.

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Read more:

• Backing just one horse in a consultation process may be unfair
• Successful challenge to closure of children’s heart surgery units
• Consultation on children’s heart surgery was lawful, rules the Court of Appeal
  
• Richard III on the move again – pitched into the current judicial review debate
• Back to basics – why a public authority cannot be an HRA victim