In R (Help Refugees Ltd) v SSHD (2018) EWCA Civ 2098 the Court of Appeal has restated propositions in relation to the scope of a duty to consult, as follows:-

(1)       Irrespective of how the duty to consult has been generated, the common law duty of procedural fairness will inform the manner in which the consultation should be conducted;

(2)       The public body doing the consulting must put a consultee into a position properly to consider and respond to the consultation request, without which the consultation process would be defeated. Consultees must be told enough – and in sufficiently clear terms – to enable them to make an intelligent response. Therefore, a consultation will be unfair and unlawful if the proposer fails to give sufficient reasons for a proposal, or where the consultation paper is materially misleading, or so confused that it does not reasonably allow a proper and effective response.

(3)       The content of the duty – what the duty requires of the consultation – is fact-specific and can vary greatly from one context to another, depending on the particular provision in question, including its context and purpose. The requirements being linked particularly to the purpose of the consultation.

(4)       A consultation may be unlawful if it fails to achieve the purpose for which the duty to consult was imposed.

(5)       The Courts will not lightly find that a consultation process is unfair. Unless there is a specification as to the matters that are to be consulted upon, it is for the public body charged with performing the consultation to determine how it is to be carried out, including the manner and extent of the consultation, subject only to review by the Court on conventional judicial review grounds. Therefore, for a consultation to be found to be unlawful, “clear unfairness must be shown”.

(6)       The product of the consultation must be conscientiously taken into account before finalising any decision.
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In R (Save Britain’s Heritage) v SoS for CLG and Westminster City Council (2018) EWCA Civ 2137 the Court of Appeal considered whether there was a legitimate expectation that reasons would be given, based on a promise. The Court reaffirmed (paragraph 39) that in such a case the position is that, if a public body indicates a clear and unequivocal policy that will be followed and applied in a particular type of case, then an individual is entitled to expect that policy to be operated, unless and until a reasonable decision is taken that the policy be modified or withdrawn, or implementation interferes with that body’s other statutory duties. Read more »

In Ocean Outdoor UK Ltd v Hammersmith and Fulham LBC (2018) EWHC 2508 (TCC) the Claimant challenged the decision by the defendant (“the Council”), to enter into arrangements with Outdoor Plus Limited (“Outdoor Plus”) for the leasing of two plots of land and operation of two metal towers, with media screens and supportive software, one on each plot, in West London (“the Two Towers”) following a tender exercise.

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In Nicholls v Croydon LBC and Hacker v Croydon LBC, UKEAT/0033 and 0004/18/RN, the employment of the Claimants (BMA Appellants and Unite Appellants) transferred on 1 April 2013 from the Croydon Primary Care Trust (“the Trust”) to the London Borough of Croydon (“the Council”).  In connection with the transfer, the Secretary of State made the Health and Social Care Act 2012 (Croydon Primary Care Trust) Staff Transfer Scheme 2013 (“the Staff Transfer Scheme”).  He did so in exercise of the powers conferred by Section 300 of the Health and Social Care Act 2012.  Read more »

In R ( Langton ) v SoS for DEFRA ( 2018 ) EWHC 2190 ( Admin ) Sir Ross Cranston restated principles in relation to consultation as follows.

Para 104 : there is a “ high threshold” of being “ clearly and radically wrong “ so as to render a consultation procedurally unfair and thus unlawful.

 Para 105 : a consultation has to be considered in its statutory context.

 Para 106 : once a consultation is launched it must be carried out fairly, but the statutory context is relevant when considering the performance of the consultation duty, the specific matters on which to consult, and the basis upon which the consultation should proceed.

 Para 109 : only in exceptional cases and special circumstances is reference required to “ discarded alternatives”.

 Para 115: as to how consultation responses are addressed, for unlawfulness the claimant must establish that a matter was such that no reasonable decision maker would have failed in the circumstances to take into account as a relevant consideration. Read more »

In R ( KE ) v Bristol City Council ( 2018 ) EWHC 2103 ( Admin ) the Court quashed the Council’s High Needs Block budget allocation, which reduced expenditure on Special Educational Needs. The Judge found that there had been a duty to consult by reason of the duty of inquiry under the PSED, Section 27 of the Children and Families Act 2014, and common law. He also found that there was a breach of Section 11 of the Children Act 2004.