Lambeth Council has just lost a Judicial Review in a case that holds lessons for many of us involved with pubic consultations.

The story is about a social housing development called Cressingham Gardens, which is felt to be showing its age, fifty years after being built in the 1960s. Much of it is still social housing, although some residents took advantage of the right to buy in the 1980s and became owner-occupiers. With the best possible motives, the Council instigated detailed discussions with the tenants (S.105 of the 1985 Housing Act requires a degree of tenant involvement) and worked on a number of future scenarios. In all five options were developed. Two of them were based around a demolish and rebuild plan – increasingly popular as developers offer Councils a self-funding way of increasing the number of units by building to greater densities. Three other scenarios were various degrees of refurbishment. Understandably, for many local people refurbishment was obviously more attractive than having their homes demolished!

What then happened is that Lambeth concluded that all three refurbishment options were unaffordable. The confused and confusing process leading up to this discovery is a sad tale, but its effect was that these three options were withdrawn leaving only the less palatable prospect of demolition. At this point, the residents sought and won a Judicial Review, with the Judge ruling that the requirements of a lawful consultation had not been met.
Clearly, if public bodies are to follow the Gunning Principles, they have to ensure ‘conscientious consideration’ of all options, and withdrawing some whilst the dialogue is still taking place is asking for trouble. On the other hand, the integrity of the process may require consultors to be open and transparent – telling the truth about the viability of various proposals as soon as the information becomes available. After all, everyone agrees that consulting on the basis of unviable options is wrong.

What’s the best course of action? It is to avoid ever getting into the Lambeth dilemma by ensuring that adequate costings are carried out in the first place. Co-production initiatives are great, but if participants get carried away with developing ideas that no-one properly evaluates, it brings the whole concept into disrepute. We must avoid a culture where the detailed arithmetic is only done for proposals conceived and developed by the Managers. Options developed through a participative process deserve as much research as those dreamt up by the ‘experts’.

Many public bodies have our sympathy for the complexities of the calculations that they have to make – and the difficulty of sharing the abstruse economics of some public services with the general public. The passenger transport body for Newcastle and Tyneside – NEXUS – was recently criticised for a consultation on new plans for Quality Contracts, and the basic problem was that the bus companies favoured a different method of calculating the ‘net present benefit’ of a scheme from that used by the consultor. Virtually every local authority budget consultation holds the potential for similar kinds of disputes!

What all these situations show is that it is essential to have a high degree of confidence in the financial impact of consultation options before the dialogue process begins. But in addition, there should be as much consensus as possible about the figures. We must avoid occasions when an organisation does a calculation proving a particular option unaffordable only to find that key stakeholders disagree.

The whole thrust of the move towards stakeholder involvement in options development at the pre-consultation stage is to eliminate misunderstandings and seek a list of viable alternative solutions – knowing that there will be no nasty surprises. For one side to a debate suddenly to withdraw from the discussion options favoured by significant sections of the impacted community is worse than unfortunate. It suggests a failure to take the particular scenario seriously – but also it will look to everyone so affected as if it is a dirty trick has been played upon them, and their sense of unfairness will be palpable.

Lambeth’s experience is a timely reminder that public bodies and others have the responsibility for doing the arithmetic and evaluating the impact of options very diligently, and that failures to do this properly will jeopardise their decision-making.

TRIGGER POINTS

• How robust are your arrangements for the financial evaluation of potential scenarios before they are adopted as options for a public consultation?
• The case featured in this Topic is Bokrosova v London Borough of ~Lambeth [2015] EWHC 3386
• An excellent video that provides an insight into the context of this and other disputes on social housing renewal is available on https://www.youtube.com/watch?v=wGRf-SENyPk
• For more about the NEXUS issue see http://www.bbc.co.uk/news/uk-england-tyne-34708792
• There are other interesting aspects to the Bokrosova case (including the interesting question of whether this was involvement or engagement, or was it a consultation?) and these will be considered in depth at the next Law of Consultation training course on 4th February on London. Contact Martin Roach on 01767 318350 or on martinr@consultationinstitute.org to enquire whether there may still be availability.
• The Lambeth scenario will be used (with modifications) in the new Institute Masterclass – Understanding Public Engagement – available this Spring.

This is the 289th Tuesday Topic; a full list of subjects covered is available for Institute members and is a valuable resource covering so many aspects of consultation and engagement.