April 16th, 2019 by James Goudie KC

Keep the Horton General v Oxfordshire CCG and Cherwell District Council (2019) EWCA Civ 646 concerns one aspect of the first part of a two-phase consultation exercise upon five proposals. McCombe LJ said:-

“18. … “fairness” underpins all; to be lawful a consultation must be fair, but fairness does not require perfection. A challenge will not necessarily succeed simply by pointing out a way in which the consultation could have been better, unless the failure to proceed in that way has led to real unfairness.”

Sir Terence Etherton MR added:-

“66. As Lord Justice McCombe has emphasised, however, and indeed was common ground before us, the consultation will only have been unlawful if, in the actual circumstances of the case, including the statutory context, it was unfair: R (Moseley) v Haringey LBC [2014] UKSC 56, [2014] 1 WLR 3947. The mere fact that it was not perfect or could have been improved is not enough to make the consultation unlawful if, in all the circumstances, it provided a fair opportunity for those to whom the consultation was directed adequately to address the issue in question.”

It was not unfair to deal with the issue of bed closures in phase 1, instead of in phase 2, which was to deal with community care provision. The issue of whether there was sufficient community care to counter the consequences of the closure was of obvious concern to consultees. That would have been apparent at the time of the phase 1 consultation.

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