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The keys to consultation

Proper consultation is essential if local authorities are to avoid legal challenges to their restructuring of services, writes Peter Keith-Lucas.

The scale of the current financial crisis, and the depth of cuts required, mean that every local authority is faced with undertaking a root-and-branch review of its services, to determine what services it either must provide, or can still afford to provide, in straitened financial circumstances. That review will inevitably look at the manner in which even the most essential services are to be provided, to whom, and whether the service is to be free to the recipient or subject to a charge. At the same time, local authorities will be looking to see how those services can be co-ordinated with, or jointly provided with, the activities of other agencies to ensure that they are as effective as possible.

Inevitably, there will be major service reductions. Some discretionary services will cease altogether. Some mandatory services will be pared to the legal minimum. Local authority lawyers will be tasked with defining exactly what is the minimum service level which their authorities have to provide, and will rapidly discover that the underlying legislation makes this an almost impossible task. In some cases, the legislation is admirably precise, requiring that a specific operation be completed within 10 working days. For some services, the statutory minimum is defined in terms of meeting the needs of the individual. For highways maintenance, the minimum standard is to keep the highway safe for the ordinary traffic which uses it. There are as many different ways of defining a minimum service in statute as there are statutory powers. At the same time, local authority lawyers will re-visit the case law on the relevance of the authority’s financial circumstances to its duty to provide services.

There will be reluctant losers from this process, who will wish to challenge the withdrawal of local services. Whilst local authorities have to do a very difficult balancing act to best meet competing demands for different services, individuals may be more focused on the impact of proposed service reductions on their personal circumstances, or may be campaigning for the retention of a valued local facility, of weekly domestic refuse collection, or of the local library.

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It will always be difficult to challenge the merits of the closure decision, because that is essentially a political decision on priorities. But it is often easier to challenge the process by which the decision was arrived at. In the recent Barnet and Portsmouth cases (R (Boyejo) v Barnet LBC; R (Smith) v Portsmouth City Council) [2009] EWHC 3261 (Admin)), opposing the replacement of the resident warden service at sheltered accommodation by a peripatetic warden, the challenge was to the absence of an equalities impact assessment, establishing what the impact of the proposals would be on disabled users of the service. In the Sandwell BSF case (R (Luton BC & Nottingham City Council) v Secretary of State for Education [2011] EWHC 217 (Admin), the challenge centred on the essential irrationality of the decision in the absence of consultation with affected authorities. That pattern has been repeated in challenges to withdrawal of grants for voluntary bodies and of funding from law centres, demonstrating that the challenge will be to the process of decision-making just as much as to the merits of the eventual decision, and many of the central issues of the rationing of scarce public resource will be determined not by individual local authorities but by the law courts.

If the definitions of what is a mandatory and what is a discretionary service, or what is the minimum acceptable level of service, are far from simple, the process of taking those rationing decisions has recently become much more difficult, because of the extent to which each local authority must now consult and involve people likely to be affected by the proposed service cuts.

While various statutes imposed specific consultation requirements, for example on proposed school closures, there has hitherto been no general consultation requirement on local authorities. Consultation has been more a matter of building political consensus or campaigning than a legal requirement. This changed with the implementation from 1 April 2009 of s.138 of the Local Government and Public Involvement in Health Act 2007 which placed a new general duty on every local authority in England to take such steps as it considers appropriate to secure that representatives of local persons (or of local persons of a particular description) are involved in the exercise of any of its functions, among other things by being consulted about the exercise of the function. Even if the eventual decision is that consultation is not required for a specific change, it is still necessary for every local authority, before starting the decision-making process, positively to consider whether public consultation is appropriate.

The next step on this road came with the passage of the Equality Act 2010. It is easy to dismiss this Act as merely a consolidation of existing equalities legislation, but it goes much further.

The Government decided not to bring into force the duty under section 1, that every “public authority” (which includes not just local authorities but also government departments and PCTs), when making decisions of a strategic nature about how to exercise its functions, must have due regard to the desirability of exercising those functions in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage. Service cuts and the introduction of charges for services, of course, bear disproportionately upon “the poor”.

But from 5 April 2011, s.149 of the Equality Act 2010 has extended the duty of authorities in respect of people suffering any of the “protected characteristics” of race, disability, sex, pregnancy and maternity, gender re-assignment, sexual orientation, religious beliefs and age, but now for any “public authority”. The Act requires that every public authority must, in the exercise of its functions, have due regard to the need to “remove or minimise disadvantages suffered by people who share a relevant protected characteristic” where the disadvantage is connected to that characteristic, to the need to “meet the needs of people who share a relevant protected characteristic” where those needs are different from the needs of people who do not share the characteristic, and to the need to “encourage people who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such people is disproportionately low”. Town Hall mandarins may sometimes appear to be hard of hearing, but the era is long gone in which they could pretend to understand the nature of disadvantage and exclusion suffered by individuals who suffer from hearing loss or disabilities or protected characteristics, and so claim to be qualified to prescribe appropriate remedial actions. So, consultation with individuals who have the various “protected characteristics” and their representatives must now be an essential pre-requisite of lawful decision-making on service-restructuring.

That consultation serves two distinct purposes:

  • first, it provides the local authority with the information to enable it to determine the impact of its proposed decisions. So it provides the basis for the authority to take a reasoned and rational decision;
  • secondly, beyond being merely a fact-finding exercise, it enables the consultees to influence the decision-making process.

The nature of consultation was defined by Lord Woolf MR in R v North and East Devon HA ex p Coughlan [1999] EWCA Civ 1871, where he set out three essential features:

  • to be proper, consultation must be undertaken at a time when proposals are still at a formative stage;
  • it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; and
  • the product must be conscientiously taken into account when the ultimate decision is taken.”

The second of these requirements was elaborated by the High Court and the Court of Appeal in R (Breckland DC) v Boundary Committee [2009] EWCA Civ 239, in which it was held that consultation could not be conducted in a vacuum, and that it was necessary for there to be some form of proposal to which consultees could respond, and that the relevant information must be presented in a form which is digestible for those to whom it is addressed. As the Court of Appeal said: “We decline to go further than to wonder whether providing, without a short synopsis, several hundred pages of dense material from which the critical summary conclusions may not leap off the page should be regarded as adequately informing the public of the bones of the financial conclusions.” Further, an authority cannot rely on the press and others to make such information more intelligible – “We do not agree with the judge that mediation by opinion makers is a proper supplement which was capable of turning inadequate consultation on affordability into adequate consultation.”

There is no statutory timetable for such consultation. It would be for each authority to determine who it will consult and how long to allow for responses on each occasion. The Breckland case offers little assistance here as the timetable in that case was so extreme, with the “indigestible” financial information published on 21 November 2008 and responses required by 5 December 2008. However, the Code of Practice on Consultation issued by the Department for Business, Innovation and Skills provides that consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible, though subsequent stakeholder consultation on the details of a proposal may be reduced to six weeks. It will be interesting to see whether the courts adopt this as a measure of adequacy.

Given the requirement for every local authority to undertake a root-and-branch review of its services, it is hard to see how an authority can fulfil these consultation requirements in an ad-hoc manner, identifying consultees from scratch on each occasion. It is therefore likely that many authorities will seek to establish standing panels of consultees, comprising representatives of people with protected characteristics, and no just organisations campaigning on their behalf.

However, this is not to understate the difficulties of authorities in accommodating proper consultation within the timeframe within which real and substantial cost savings must be delivered, and in setting realistic and robust budgets, which would need to be based on an assessment of the savings which can be achieved, without invalidating the consultation and the decision-making process by, effectively, determining in advance what cuts are to be made.

What is clear is that the root-and-branch review of services which every local authority must undertake will attract legal challenge; that the requirements for genuine consultation have been very substantially increased by the 2007 and 2010 Acts; and that the process of decision-making by local authorities will be vulnerable to such legal challenge unless such consultation is conducted properly. All that makes the task of local authorities in responding to the current financial pressures all the more difficult.

Peter Keith-Lucas is a Local Government Partner at Bevan Brittan LLP.

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