No Statutory Duty to Consult? The Law May Disagree

A 2026 High Court ruling against Swansea Council shows that a duty to consult can run deeper than either statute or contract. A legitimate expectation, a reasonable assumption that a public body will act consistently with a past promise or established pattern of behaviour, can require a specific question to be asked even when nothing in law or contract says so.

What happens when there is no statutory duty to consult?

The courts have long held there is no general duty on a public body to consult, confirmed in the Richard III reburial case, R (Plantagenet Alliance) v Secretary of State for Justice [2014] EWHC 1662 (Admin). However, a duty can still exist through a statutory requirement, a promise to consult, an established practice, or conduct so unfair that fairness demands it anyway.

Most people only think about the first of these: whether a law specifically requires consultation. But the other three matter just as much, and none of them depend on Parliament having legislated anything at all. They depend on what your organisation has said, done, or is about to do, each in a different way, and each is worth understanding on its own terms.

Think of it as a personal promise rather than a legal formula. If your organisation has always come to residents before closing a service, or told providers years ago that it would ask before changing fees, walking away from that pattern without a word is likely to look unfair to a court, even though no statute ever required you to ask in the first place.

What else can create a duty to consult?

The clearest of the three is a straightforward promise to consult. Courts have recognised this since Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9, the GCHQ case, which established that a public body’s own assurance can bind it. The promise need not be written down. Conduct can count too, provided it amounts to a commitment that is clear, unambiguous, and free of hidden caveats.

The second is an established practice. A public body’s own consistent pattern of behaviour can bind it just as firmly as a promise. But the pattern has to closely match the decision being made now. A general habit of good practice in a related area is not enough on its own; courts look for a precise fit between what an organisation has always done and what it is doing this time.

The third is conspicuous unfairness: the narrowest of the three, and the only one that does not depend on any promise or practice at all. It can also apply on top of one of the other two, adding an extra requirement to a process that already exists, as the next case shows, where a council thought its own contractual consultation clause had already covered the point, and the court disagreed.

Why did Swansea Council’s care fee consultation fall short?

Heart of Wales Care Ltd v Swansea Council [2026] EWHC 899 (Admin) shows this working in a real commissioning dispute. The council’s contracts with care home providers already committed it to setting annual fee rates using the normal process of consultation. When it came to set the 2025 to 2026 rate, the council ran a months-long engagement exercise, gathering cost data and discussing it with providers. The High Court found that process was largely fair.

But one gap remained, and it was narrow and specific. Partway through the process, the government announced changes to the threshold for employer National Insurance contributions. The council never asked providers what that change would do to their costs. The court found that single omission conspicuously unfair, and rejected the argument that the contract’s consultation clause covered the point: the contractual position could not excuse the need to ask.

What should practitioners check before assuming a decision is safe?

Heart of Wales Care is a useful warning against complacency. Having a consultation process, even a contractual one that has run for years without complaint, does not automatically satisfy the fairness backstop. If something new and material affecting the outcome comes up partway through, and nobody asks the people it affects about it, that single gap can be enough on its own.

Before assuming a decision is safe to make, three questions are worth asking. First, does your organisation actually have a specific promise or practice covering this decision, not just a general habit of good practice in a related area? Second, has anything material changed partway through your process that nobody has specifically asked the affected parties about?

Third, if the answer to both is no, would skipping the question anyway look conspicuously unfair, given what is at stake and who is affected? Answering these honestly, before a decision is taken rather than after a challenge is issued, does more to manage legal risk than any assumption about what statute, or even your own contract, requires.

The absence of a statutory trigger closes one line of enquiry. It does not close the analysis.

How tCI Can Help

Advice and Guidance
A tCI faculty member will work alongside you to support the development of your decisions and engagement approach. We provide independent, constructive advice at critical stages, helping you strengthen stakeholder mapping, test communication strategies, and plan robust post-decision engagement. Our role is to act as a critical friend, offering practical recommendations grounded in consultation law and good practice that build confidence in your process.

Risk Assessment
Early identification of legal, political or reputational risks in your engagement approach. Using tCI’s five-risk methodology, we spot gaps before challenge arises, helping you strengthen stakeholder communication and demonstrate procedural fairness from the outset.

Executive Briefings
Concise updates for senior leaders on consultation law, engagement duties and post-decision risks. Helps boards and leadership teams make confident, defensible decisions when under pressure, with clear guidance on what good engagement looks like after difficult choices are made.

Whether you’re preparing for a high stakes service change or building defensible evidence for complex decisions, we can help.

Contact tCI: hello@consultationinstitute.org