R (Silus Investements) v Hounslow LBC (2015) EWHC 358 (Admin) the Claimant’s grounds of challenge included breach of a legitimate expectation of consultation.  The Council had represented that there would be consultation on the proposed designation of a Conservation Area.  Therefore it had of course to comply with the minimum standards of a lawful consultation procedure, as expressed in Gunning/Coughlan, and recently approved by the Supreme Court in Moseley. Lang J found that those standards had not been met.  First, the consultation notice was not accompanied by “sufficient reasons for particular proposals to give intelligent consideration and an intelligent response”.  The summary and details given were “too brief and superficial to provide for a meaningful consultation”: para 54.  Second, a 7 day consultation period was too short for consultation to work fairly or effectively, para 55.  Third, the product of consultation was not “conscientiously taken into account”, because the decision was made before all the consultation responses were received: para 57.  There had been unfairness.

R (T) v Trafford MBC [2015] EWHC 369 (Admin) was primarily concerned with whether the Council was under a common law duty to include alternative options in its consultation on proposed budget savings.  Stewart J held that the Council was under no such duty.  On the proper interpretation of Moseley in the Supreme Court it is only sometimes that fairness will require consultation upon arguable yet discarded alternative options.  Moseley does not cast doubt on what was said by the Court of Appeal in Rusal. The Council were entitled “lawfully to present their preferred option and to consult on the best way to achieve that”: paragraph 37(vii).  The point in Moseley was that the consultation document was misleading.  If an authority does not consult on rejected options, and presents only a preferred option for consultation, that is not misleading.  It was legitimate to focus the consultation on savings in services when circumstances dictated that it was not realistic to increase council tax or use reserves: paragraph 38.

Budget cuts and consultation featured yet again in R (L & P) v Warwickshire County Council [2015] EWHC 203 (Admin), in which Judgment was given by Mostyn J on 5 February 2015.  The primary ground of challenge alleged that the Council had acted unlawfully in not consulting (at common law) on its savings target for its Integrated Disability Service (“IDS”) for children.  However, this, along with other savings targets, had been identified in February 2013.  The Judge, applying Nash v Barnet LBC [2013] EWCA (Civ) 1004, (2013) PTSR 1457, held that grounds for challenge “first arose” in February 2013 and the challenge therefore was far out of time.

The Judge went on, however, to consider the ground on its merits.  He began by identifying a constitutional issue, which he put this way:

“The decision to set a local authority budget at a certain level and to make reductions in certain areas must surely be the very quintessence of a political decision.  A challenge to a budget proposal should normally be made through elected representative or, if dissatisfied with what they are doing, by seeking to unseat them at an election. That is what local democracy is all about. The main challenge here does to my mind raise a serious constitutional question.”

Mostyn J went on “whole-heartedly” to agree with the statement of Collins J in the Lincolnshire library closure case, Draper v Lincolnshire County Council (2014) EWHC 2388 (Admin), at para 53:

“The overwhelming objection to the decision does not in itself mean that it is unlawful. The decision to make the £2 million cuts was a political one which was not and cannot be challenged in the courts.  It can of course when it comes to electing councillors. The need for cuts will inevitably produce hard decisions for many, but that does not make them unlawful.”

Mostyn J added, however, a caveat:

“That does not mean of course that every political decision made by an elected county council is immune from challenge in judicial review proceedings. It does mean however that I must be especially careful that I do not cross the line into the political arena and get lured into making a judgment about the merits of a democratic decision which imposes a cut.”

The Judge duly recognized that in some circumstances there is no statutory obligation to consult but the common law nonetheless imposes one, in order to satisfy the requirements of procedural fairness, but said Mostyn J:

“Plainly, the circumstances where the judges will intervene to tell a decision maker, who may very well be an elected representative, how procedurally to make his or her decision will be very circumscribed.”

Turning to the three circumstances where the common law will impose a duty to consult, (i) where there has been a promise to consult, (ii) where there has been an established practice of consultation, or (iii) where, in exceptional cases, a failure to consult would lead to conspicuous unfairness, the Judge observed that for each of (i) and (ii) “the duty must be predictable and finite in scope”, and that as for (iii) not only must the case be “exceptional” but the unfairness must be of a very high level”, it must be “conspicuous”.  Reverting to the constitutional issue, Mostyn J added that:

“In each instance where the decision not to consult has been made by a democratically elected representative the court should be very slow to intervene, for obvious constitutional reasons.”

Mostyn J having set out the principles to be applied in working out whether a duty to consult arises or not, the next question would be how it should be carried out.  Obviously it must be carried out fairly.  The Judge referred to the authorities, including at Court of Appeal level, that consultation will only be so unfair as to be unlawful when something has gone “clearly and radically wrong”, a “strong test”, a “high test”.  Mostyn J ruled that this remained the test post-Moseley in the Supreme Court, saying that his view was supported by R (Robson) v Salford City Council (2015) EWCA (Civ 6. 

The primary ground of challenge failed because it was not a category (i) case, as none of the promises of consultation promised consultation on whether in principle the cuts should be made, and all of the promises made were to consult, which was done, about the ways and means of achieving the targeted savings; nor was it a category (ii) case; and the question was whether it was a category (iii) case, which would be “very rare”. Mostyn J stated that the Warwickshire case did not come “remotely close” to “conspicuous unfairness amounting to an abuse of power”.  He said:

“This case was an example of a budget being regularly and constitutionally set by a local authority in the present time of austerity.  All democratic procedures and safeguards were followed. It simply cannot be said that to make that decision without prior consultation was so conspicuously unfair as to amount to an abuse of power.  On the contrary, it was an example of democratic power being properly, lawfully and constitutionally exercised. If the people of Warwickshire did not like that decision they could have voted out the councillors three months later.”

He added:

“My overriding conclusion is that the claimants here are voicing their complaints in the wrong place.  Rather than raising them in a court room they should raise them in councillors’ surgeries and ultimately in the voting booth.   As I have said earlier, that is what local democracy is all about.”

The Warwickshire case also concerned statutory consultation on the Local Offer (social care, education and health) under the Children and Families Act 2014.  The Judge observed that not only did a vast number of people and bodies have to be consulted before a Local Authority publishes its Local Offer, but also a “huge amount of information”,  a  “very extensive range of information”, must be referenced.  Mostyn J observed:

“Although the prescriptions are extremely extensive it is important to understand that the requirement is no more than to publish information about what services are expected to be available.  Section 30 of the 2014 Act incorporates a publication obligation, no more, no less.”

The Judge rejected a challenge that the Local Offer consultation was unfair. It was not a consultation about whether particular provision should be made.  He said:

 “… it must be very clearly understood what the purpose of the consultation is.  It is about what appears in the Local Offer, which is a compendium of information.  I remind myself of the words of section 30.  The local authority has a duty to publish information about certain provision it expects to be available.”

The Judge also rejected a challenge that alleged that the IDS proposals, and the local LSCB’s thresholds document, were unlawful or contrary to the 2013 “Working Together to Safeguard Children” statutory  guidance.  He said, referring to Section 17 of the Children Act 1989:

 “It would not make sense for any child with any “mental disorder” to be entitled automatically to receive a section 17 assessment conducted by a social worker given the mutability of the term mental disorder.  I agree with Mr Goudie QC that it may, for example, be entirely inappropriate for a child with dyslexia or dyspraxia to receive a social care assessment under section 17.  In my judgment the guidance should not be read as insisting that every disabled child should initially be the subject of a full-blown social worker assessment.  Alternatively, if it does say that then local authorities and safeguarding boards would have good reason for departing therefrom.  The approach taken in the threshold document strikes me as eminently reasonable in terms of initial deployment of resources.”

The recent Supreme Court decision in Moseley has now for the first time been considered in the Court of Appeal.  A consultation challenge failed in R (Robson) v Salford City Council [2015] EWCA Civ 6.  The Court of Appeal reined Moseley in, from paragraph 22 of the Judgment of Richards LJ, with which Treacy LJ and Newey J agreed.  At paragraph 22, Richards LJ said:-

“The decision of the Supreme Court in R (Moseley) v Haringey London Borough Council [2014] UKSC 56, [2014] 1 WLR 3947, has featured large in the argument concerning the consultation issue. … In fact the decision in Moseleyis largely an endorsement at Supreme Court level of principles already established at the level of the Court of Appeal, but it provides an illustration of the application of those principles …”

 At paragraph 29 Richards LJ continued:-

“As to the application of the law to the facts in Moseley, the consultation in that case was found to be procedurally unfair because the consultation documentation gave a misleading impression in failing to mention other ways of absorbing the shortfall in funding which the proposed scheme was intended to meet.”

 Richards LJ concluded:-

“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. …

35. In Moseley the consultation material conveyed a positively misleading impression that other options were irrelevant. …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. …”

“36. It may be helpful for me to indicate that if I had found that the consultation was unfair, I would have favoured limiting relief to the grant of a declaration, refusing the quashing order sought by the appellants (just as the Supreme Court in Moseley declined to grant a quashing order in the particular circumstances of that case). … In my judgment it would not be appropriate in these circumstances to require the Council to go back to square one and to conduct a fresh consultation exercise.”