Decision Making and Contracts

January 6th, 2020

In R (AA) v Rotherham MBC (2019) EWHC 3529 (Admin) Jefford J, a case on closure of a Day Centre for adults with learning difficulties, following two consultations, and the Council’s responsibilities for the claimant’s care needs under the Care Act 2014, Jefford J stated with respect to the law on consultation and options:-

“83.     … the following propositions can be stated:

(i)        It is not necessary in all cases where a particular proposal is the subject matter of a consultation to set out alternatives including those that may have been rejected or explain why they have been rejected.

(ii)      Fairness requires that to be done where it is necessary to allow informed or intelligent responses. That is sometimes the case as Lord Wilson said at paragraph 27 of this speech.

(iii)     Whether that is necessary, and correspondingly whether the consultation is a fair one, is a broad question in answering which the matters that fall to be considered include the purpose of the consultation, the nature of the proposal being consulted on, and what consultees can be reasonably taken to know about the proposal and its context.

(iv)      It is only where the failure to set out alternatives renders the consultation clearly and radically wrong or unfair that the court ought to interfere.

  1. … whether a consultation is unfair is a highly fact sensitive question. By the same token whether it is necessary to offer discarded alternatives and an explanation for their rejection is also a highly fact sensitive question.”

“88.     Numerous decisions … emphasise that the body carrying out the consultation has a wide degree of discretion as to what to include in a consultation: …”

“90.     Consistently with the high threshold for a finding of unfairness and the emphasis placed on the fact specific nature of each case, the court should not place itself in the position of retrospectively micromanaging the process: … 

  1. … the application of the Moseley principle (if that is what it is) or the identification of those occasions when it is necessary to refer to an alternative option to ensure a fair consultation is highly fact specific and the factual context is highly material. For example, there can be, in my view, no general proposition that an open question inviting consultees, in effect, to offer alternative proposals is necessarily insufficient to ensure fairness if alternative proposals (including those that have been discarded) are not specifically identified for consultation. It depends on the facts of the case. Nor is there any general proposition that there need be reference to a discarded option or that there needs to be more than a passing reference or, as may have been an aspect of the claimant’s case, an explanation for why an option had been discarded.
  2. The following general propositions applicable to the specific factual scenario can, however, be derived from the authorities: (i) that the local authority/ public body should be allowed a large measure of discretion as to what it consults on; (ii) that the court should be cautious to intervene (and should only do so where something has gone clearly and radically wrong); (iii) that, consistently with that proposition, the court should not micromanage the consultation process; (iv) it may be the case that the consultation process could have been better managed and the consultation questions better framed but it does not necessarily follow that the process was unfair.
  3. Taking the consultation process as a whole, this is not, in my judgment, a case in which fairness required that there should have been a specific alternative option identified in the consultation and/or that a discarded option should have been referred to.”

“101.  In any case, the questions cannot be looked at in isolation and need to be read as a whole. The claimant’s case as to unfairness is that it entails the proposition that the open questions were insufficient to ensure fairness. The corollary of that is that there must be a positive obligation to propose some alternative – because an open question is not good enough – and that correlative proposition is not supported by authority. As I have said, whether an open question is sufficient to ensure fairness is again a question of fact and a fact sensitive one. In the Moseley case it would not have been sufficient because only the most sophisticated and well-informed consultee might be expected to know about the transitional grant option. The factual and legal scenario in this case was by no means as complex and distinct as that in Moseley and, particularly bearing in mind the interests of the consultees, they could reasonably be expected to appreciate that other, and what might be called hybrid, options could be put forward or that they might comment favourably on one aspect of the proposal whilst commenting unfavourably on another and proposing an alternative.

  1. In some circumstances, an open question about change and improvement might require further information about possible options in order to elicit any sensible response but that was not this case. …”

“105.  In short, it would be wrong, in my view, to come to the conclusion that the consultation was clearly and radically wrong or unfair because some questions might have been even better formulated.”

“107.  There is, of course, no point in a consultation process unless the outcome of that process is taken into account. Accordingly, there is no dispute that the council was obliged to give conscientious consideration to the outcome of the consultation process. That reflects the fourth of the Gunning criteria. At the same time, the purpose of a consultation is to inform the decision-making process – it is not a referendum or a head count. It is open to a public body to reach a decision which is contrary to the majority view of the consultees so long as their views have been given conscientious consideration and the decision is not an irrational one. …”

“118.  … it would in the normal course be the claimant who bears the burden of proof, that is the burden of proving on the balance of probabilities that the decision makers failed to give conscientious consideration to the outcome of the consultation. I was not referred to any authority which reversed that burden of proof in a case such as this. …”

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