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Scoping, time limits and when is a consultation not a consultation?

Back in 2022, the Government issued a green paper entitled “SEND Review: Right support, right place, right time: Government Consultation on the SEND and alternative provision system in England”. It covered policy proposals arising from a 2019 review examining support for children with SEND, and collected views on some of these issues. The seventh question in the document asked “Do you consider the current remedies available to the SEND Tribunal for disabled children who have been discriminated against by schools effective in putting children and young people’s education back on track?”

The SEND Tribunal is a method of recourse for those who wish to challenge the decisions of local authorities with respect to children and young person’s SEND status and needs. Remedies it can give include training of school staff, and ordering school policy changes, however, to the objection of some parents of children and young people with SEND, it cannot order compensation.

This was the root of the challenge in R (CU) v SoS for Education [2024] EWHC 638 (Admin). The challenge essentially related to the intent of the question. The Government argued in court that the seventh question was not one going to any particular policy decision, but rather a question seeking general feedback. One of the witnesses, in her witness statement contended that the Government were not asking whether or not the remedies were effective (in order, say, to consider whether other remedies might be necessary), but whether they (the existing remedies) were effective in putting children and young people’s education back on track. A subtle difference perhaps, but vital in this case. Despite the best efforts of the claimant, the judge rejected the idea of an implicit question on the need for other specific remedies.

So far, so ‘another argument about the scoping of a consultation question’. In the event, the judge rejected the whole claim. So why are we writing about it? Well, that’s because of two very important things, one helpful, one arguably less so. To deal with the helpful one first, one of the issues that came up in the case was when the time limit for bringing a JR case starts running in consultation cases. Fans of consultation law (or administrative law more generally) will remember that unless a case is brought “promptly” and “not later than three months after the grounds to make the claim first arose”, it is liable to be turned down by the courts as being out of time.

In consultation this can be a difficult one to judge- does the latter refer to the actual decision on the substantive issue being consulted on? Or the issuing of the consultation document? It was precisely this subject that Stephen Davies J tentatively tackled here. It came down, he said, to what the substance of the decision being challenged was. Generally it should be the start of the consultation process as this was when the unlawfulness arose, however, in cases such as this, where the alleged flaw in the consultation process had been identified and flagged to the public authority during the consultation process, and the authority had rejected the challenge and refused to correct it, the point of this rejection could also be the hare that set the legal clock running. This remains generally reflective of the principle from the Royal Brompton case that consultation should be a largely self-correcting process with the law only stepping in when absolutely necessary.

So having dealt with the helpful discussion, we must now move to the other which might be worthy of further consideration. This case was the first to apply what I shall call the “Eveleigh refinement”. Eveleigh was a case from 2022 in the Court of Appeal that considered when a ‘survey’ rose to the level of being a consultation, and therefore attracted the strictures of Gunning and consultation law, as opposed to just being a general information gathering exercise.

Although in the High Court the judge found that the survey in question had been a consultation, at Appeal this argument was rejected, and Laing LJ went some way to refining what should be legally considered to be a ‘consultation’. She agreed that, as has been touched upon previously in various cases, ‘consultation’ is essentially a matter of function- something labelled a consultation isn’t necessarily one and, as occurs more often, something not labelled as a consultation may well be one.

Laing LJ also went further however, suggesting that the Gunning criteria (and by extension ‘consultation’) is only consultation if a specific decision is being considered. The decision may be somewhat inchoate, but there must be a specific decision that has ‘crystallised’ to some extent which might impact a particular person or group of people. In many ways, this is reflective of pre-existing thinking on the difference between consultation and more general public engagement, but for consultors it does lay out a legal line to carefully tread. Asking general questions about an issue which may at some point in the future go to inform something specific? You may not in fact be consulting. Asking questions to get to a certain decision? Then you probably are.

I will be honest and say that this feels like a decision which may come back again at some point- particularly for public authorities, where information from one exercise might feed into another, and where the need for constantly evolving policy at the lowest cost might prompt people to seek efficiencies in decision-making, I can easily see a scenario where a public body uses information collected as part of a ‘non-consultation’ as Laing LJ might have put it, is later used to make a decision, and subsequently challenged. Would the interests of justice be served if the courts said apologetically, “sorry, that’s not a consultation”? Or even, as was discussed elsewhere “you’re out of time”?

Article by Stephen Hill

Stephen was formally the Institute’s Legal and Parliamentary Officer, though now spends most of his time playing with rockets and satellites. He retains a keen interest in issues of democracy and public engagement however and provides independent commentary on consultation current affairs and legal challenges.

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