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Consultation lawful despite misrepresentation of consultee views

Is the Rotherham case an outlier or an outrage?

Last May, Mrs Justice Jefford heard what, in part, she admitted was a ‘finely balanced’ issue.

The claimant was a 27-year old autistic woman with significant needs, who had attended the Oaks Day Centre in Rotherham since the age of 19. This was a judicial review of the Council’s decision to close the facility following a consultation when the alternative of ‘person-centred provision’ was considered, and approved.[1]

The case is yet another in a growing list of challenges based on what is alleged to be a too restrictive a set of options. Counsel sought to argue that the Judge should follow the Supreme Court’s example in Moseley v LB of Haringey (2014) and declare the consultation unlawful because it failed to offer consultees the chance to consider a more popular option – namely, both retaining the Day Centre and modernising the service simultaneously. In the event, she found for the Council on this point – ruling in effect that the structure of the options had not prevented the expression of support for such solutions.

It was the other grounds of challenge that aroused our greatest interest. The claim was that the officer’s Report of the consultation was flawed and misleading. According to Mrs Justice Jefford, “The officer’s Report …I accept, creates the impression that the majority of respondents were content with the closure and/or supported the closure of the Oaks Day centre.” (at Paragraph 109).

This was untrue, and any reader who might have found Appendix E [2] of the Report would have discovered a more comprehensive analysis of the data that would have revealed the extent of the mistake. It was naturally argued that the Council could not possibly have met the Gunning Four standard of conscientious consideration of consultee views because Council decision-makers had been misled about the absence of significant opposition to its preferred option.

In response, Rotherham argued that, in reality, decision-makers were aware of the opposition. Had there not been a petition containing over 6,500 signatures opposing the closure, and much discussion with key stakeholders? In other words, regardless of what was stated in the consultation report, Councillors understood the true position so had in effect given conscientious consideration after all.

Now there is more than one way this case can be viewed.

At first glance, it seems quite outrageous that a process designed to ensure that consultee opinions are properly understood and considered could still be acceptable if, on the kernel of the issue, decision-makers have been clearly told something that is acknowledged to be wrong and misleading. Would it not drive a coach and horses through the Gunning Principles if consultors were able to propose a preferred solution but never told that consultees disagreed, let alone their reasons for doing so?  Why would anyone ever again respond to a consultation if organisations could ignore the output with legal impunity? The law may not require anyone to take decisions in line with consultee views, but – until this case at any rate – we understood it to require decision-makers to conscientiously consider what they had said.

On the other hand, is it just possible to argue that on the specific facts of this case – it is reasonable for the Judge to infer that Councillors were in possession of the necessary facts about the consultation output – albeit from sources other than the formal Report of the consultation itself? Is she justified in accepting the suggestion that every member of the Cabinet would have read the entirety of the Report – including the Appendices – and would ‘therefore’ have discovered that the Executive Summary and the main body of the Report were wrong? Unusual, it is true. But maybe just an outlier in the succession of cases where decisions have been quashed because the consultation and all around it appears not to have been fair.

Is it this wider context that holds the key to this case? Councils have been stretched almost to breaking point and often obliged to take actions they would, in more prosperous times have avoided. They present a brave face and are often tempted to put a gloss on alternative services whilst overlooking some of the drawbacks of withdrawing cherished provisions. Consultation is a vital safeguard to ensure that communities are not subject to such changes without being aware of the true consequences for those that are impacted. If ever it becomes a tokenistic device that conceals more than it clarifies, we have problems.

This case illustrates the dangers of making mistakes in the process. Unless there is an appeal, Rotherham Council might well regard itself as very fortunate to have secured the judgment in its favour.

 

[1] R (ex parte AA) v Rotherham Metropolitan Borough Council [2019] EWHC 3529 (Admin)

[2] Part of the problem that this was mislabelled and at no stage was the reader signposted to it.

About the Author

Rhion Jones is considered a leading authority on Public Engagement and Consultation. A founding Director of the Consultation Institute, he is co-author of “The Art of Consultation” (2009) and “The Politics of Consultation” (2018). He has delivered over 500 training courses and Masterclasses and is a prolific writer on the subject, having written over 350 different Topic papers and over 50 full Briefing Papers for the Institute. Since 2003 over 15,000 person-days of training based on courses he invented have been delivered. Rhion is in demand as an entertaining Keynote Speaker and Special Adviser, particularly on the Law of Consultation, and its implications for Government and other Public Bodies. In 2017, he was awarded the ‘Lifetime Achievement Award’.

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