Public Consultation? A Practical Test for ‘Significant Change’ in the Real World

Public Consultation Requirements

Public sector leaders routinely face a deceptively simple question: does this change require formal public consultation? The answer matters enormously. Consult too little and you risk legal challenge, damaged trust and derailed projects; consult too much and you waste scarce resources on unnecessary process.

This guide cuts through the complexity. It explains how to balance statutory duties against practical realities, helping you make defensible decisions that withstand scrutiny whilst using public resources efficiently.

Start with the Law

Your first step must always be identifying statutory consultation requirements. The framework varies by sector:

In healthcare, NHS England must involve people under section 13Q of the NHS Act 2006, whilst Integrated Care Boards (formerly Clinical Commissioning Groups) face parallel duties under section 14Z2. NHS guidance confirms that “for any substantial proposed changes to services, some form of involvement or consultation will be required.”

Local authorities operate under two key obligations. The Best Value Duty (Local Government Act 1999) requires councils to consult stakeholders when reviewing services. The Public Sector Equality Duty (Equality Act 2010) obliges all public decision-makers to assess impacts on groups with protected characteristics, typically through an Equality Impact Assessment.

Even without specific statutory requirements, the courts expect meaningful engagement based on the Gunning principles. These establish that proposals must be consulted upon whilst still formative, with sufficient reasons given, adequate time allowed for responses, and conscientious consideration of feedback. Ignoring these principles creates substantial legal risk.

Your action: Check whether your proposal triggers health legislation, local government rules, planning or environmental regulations, or equality and best value requirements. But don’t stop at the legal minimum. Scrutiny committees can call in decisions where public involvement was inadequate, and service changes have been halted entirely by legal challenges where duties were overlooked.

Six Practical Tests for Significance

Beyond legal obligations, certain changes clearly warrant consultation. Apply these tests:

• Scale of impact. Major service reconfigurations demand engagement: closing or merging hospitals, shutting facilities, introducing new eligibility criteria, or implementing substantial budget cuts. If many service users will experience tangible differences in service delivery, consultation is essential.
• Unequal effects. Any change that disproportionately affects people with protected characteristics or raises equality concerns requires careful scrutiny and almost certainly demands engagement. The law expects “due regard” to these impacts.
• Public attention. When politicians, media or campaign groups are watching (particularly on health, housing or transport changes) consultation builds trust and mitigates backlash. If local MPs, councillors or pressure groups are mobilised, meaningful engagement shifts from optional to essential.
• Established expectations. Past pledges to consult on particular topics, or existing consultation charters and policies, create legitimate expectations. Departing from these commitments generates both legal and reputational risk.
• Institutional requirements. Integrated Care Boards, NHS trusts and local authorities often face internal rules or contractual obligations requiring involvement. The NHS Standard Contract, for instance, includes a participation clause. Even without strict mandates, skipping engagement on major changes invites scrutiny committee inquiries or call-ins.
• Complexity or novelty. New technology projects, major procurements or unprecedented service changes carry hidden risks and potential misunderstandings. Early involvement (even informally) surfaces issues before decisions solidify.

The principle is straightforward: any proposal that could significantly affect people’s lives or service availability deserves at least some form of engagement. As NHS guidance notes, “working with people and communities is beneficial even if it is not a legal requirement” and should be treated as best practice for substantial changes. Carefully weighing these factors helps you avoid over-consulting on trivial matters whilst ensuring genuinely important changes are handled transparently.

The Gunning Principles and Legitimate Expectation

Whether or not consultation is legally required, any process you undertake must be fair and robust. The four Gunning principles provide the benchmark:

• Early engagement. Consult whilst options remain genuinely open, not after decisions have effectively been made.
• Clear rationale. Explain the reasoning behind proposals so people can provide informed feedback.
• Adequate time. Allow a reasonable period for responses, particularly on complex issues.
• Consideration of responses. Demonstrate that feedback has been conscientiously reviewed before final decisions are made.

Failure to meet these standards can invalidate even a voluntary consultation. Moreover, the doctrine of legitimate expectation means the public may reasonably expect consultation simply because it has become the established norm (for example, on annual budget reviews or service changes). If you depart from expected practice without good reason, you risk judicial review.

The message is unequivocal: if you consult, do it properly. If you’re considering not consulting, ensure you have compelling justification and be aware that a court may still expect a fair process.

Managing Risk Through Quality Assurance

To balance these competing considerations effectively, structured assessment can prove invaluable. The Consultation Institute offers Consultation Quality Assurance (QA) services designed precisely for this purpose.

A full QA provides a structured, independent review of your consultation plan and materials, assessing them against legal duties (including the Gunning tests, sections 13Q and 14Z duties, the Public Sector Equality Duty, and others) as well as best practice. The process (from early scoping through to final sign-off) strengthens each stage, giving boards and scrutiny bodies confidence that your consultation or engagement will be lawful and defensible.

For smaller changes, or when you’re uncertain whether full public consultation is necessary, QA Lite offers a streamlined alternative. QA Lite provides independent review for service changes or decisions that don’t require full public consultation but still carry legal, political or reputational risk. In practice, this might involve checking your equality analysis, stakeholder mapping or communications plan for a policy adjustment. QA Lite helps you gauge whether some form of consultation is advisable and suggests proportionate ways to involve people without overburdening your team.

Both tools help you manage consultation risk effectively. They ensure you don’t over-consult on significant changes or waste resources consulting on minor issues. By aligning with statutory duties and the Gunning principles, tCI’s QA process reduces legal and reputational risk whilst building public trust in decisions. Use these assessments as early-warning systems, ideally before a project is formally launched.

Practical Guidance: Balancing Engagement with Efficiency

Even when legal duty doesn’t require it, stakeholder involvement often adds substantial value. Engaging people transparently can identify practical issues, improve a decision’s legitimacy and head off complaints. However, public bodies must also operate efficiently. To avoid over-consulting, focus engagement where it matters most:

• Tailor your approach. Use the simplest method that meets your needs. For low-impact changes, consider targeted focus groups, information sessions or online forums instead of wide-ranging formal consultation.
• Be honest about influence. Clarify which aspects are genuinely open to change. People understand that not all elements are negotiable (particularly those constrained by law or budget) but they respect an open process.
• Document the process. Regardless of formality, maintain records of whom you involved, how input was collected, and how it influenced decisions. This creates a transparent audit trail.
• Communicate clearly. Even if you decide formal consultation isn’t needed, proactively share information and explain where feedback can be given. This signals openness and can defuse scrutiny concerns.

Above all, use risk as your guide. A risk and readiness audit (such as tCI’s QA scoping) can identify where you might encounter legal or political challenge. The goal is proportionality: engage sufficiently to meet legal expectations and stakeholder needs, but not so extensively that you delay or derail straightforward decisions. Value-led decision-making means prioritising people’s voices where stakes are high, whilst managing efficiency where they are lower.

Next Steps: Ensuring Consultation Readiness

If you remain uncertain how these factors apply to your particular project, support is available. tCI offers scoping calls to discuss your proposal and advise whether formal consultation is likely necessary. You can also download our QA Readiness Checklist to self-assess your current plans against legal and best-practice criteria.

Taking time to identify consultation risk early can save considerable time and difficulty later. Remember: addressing the question “do we need to consult?” isn’t merely a legal checkbox. It’s about making better, more transparent decisions that withstand scrutiny. By carefully judging what constitutes a significant change, and using tools such as QA and QA Lite, public sector decision-makers can reduce the risk of challenge, avoid unnecessary processes, and maintain the public trust that underpins good governance.

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How tCI Can Help

Quality Assurance
Independent review at critical stages, from evidence protocol design through to final reporting. Our seven stage QA process ensures your approach to qualitative data meets legal and good practice standards, assessing analysis methods, interpretation fairness, and compliance with Gunning principles, PSED and ICO requirements. Gives you confidence your evidence will stand up to scrutiny.

Early Assurance
Snapshot review during planning to sense check your evidence framework, codebook design and proportionality rationale before fieldwork begins. Helps you avoid costly missteps and strengthens your approach from the start.

Charter Workshops
Practical, interactive half day session introducing teams to good consultation principles. Grounded in the Consultation Charter and Gunning Principles, participants learn through expert input, case studies and group discussion. Build consistent approaches to engagement that are fair, transparent and defensible. Delivered online or in person, tailored to your sector.

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