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Transforming care – the need to consult lawfully

Few people now doubt that one of the biggest challenges facing our society is the need to develop a care system that is fit-for-purpose in the twenty-first century. Integrating Health and Social care is seen as the key policy, and we are witnessing the beginnings of the organisational and cultural transformation that’s needed if the high hopes for improved outcomes are to be achieved.

Directors of Adult Social Care and Directors of Children’s Services are only some of the more senior Local Government Officers who need to worry about the risks of making major changes to long-standing services without the required engagement and consultation with local communities and specific service users.

This Briefing Note clarifies to those responsible that there are increasingly demanding standards of community and stakeholder involvement, and that failure to observe  best practice can prejudice the effective management of such changes as well as exposing public bodies to legal challenges.

The need for engagement

There are many statutory requirements for consultation, but the truth is that ALL significant changes to long-standing services need consultation. Modern management assumes that before decisions are taken, “stakeholders” are involved. Thirty years ago, that term was unknown, and autocratic Managers just took decisions first and discussed or defended them second. Today, the picture is totally different.

The Courts provide their own incentive to engage. It’s called the ‘doctrine of legitimate expectation’. If the public has a sound basis for expecting to be consulted, then failure to do so can lead to losing a Judicial Review. And Judges have ruled that if people have been accustomed to the benefit of a service, then its withdrawal without consultation can, in many circumstances, be unlawful.

In the case of R (ex parte LH) v Shropshire County Council in 2014, the Council lost a Judicial Review of its decision to close a Day Centre. It established the principle that if a local authority (or any other public body for that matter) wishes to close a facility, it must consult on that specific closure proposal. It will not suffice just to consult on an overall strategy of closures. This is because the public has a legitimate expectation that its views would be sought – and this particularly applies to service users.

Providing information

It is also a requirement that service providers give enough information about their proposals so that consultees can make a meaningful contribution to the debate. In legal terms, this is so as to enable them to give proposals ‘intelligent consideration’ It is one of four wellestablished rules known as the GUNNING PRINCIPLES, which, since 1985, have framed the law of consultation in the UK. Failure to observe these rules can result in a decision being quashed by the Courts, and in the 30 years since they were formulated there have been a huge number of cases where public bodies have been found wanting because they did not consult lawfully.

When Birmingham Council sought to make £57m of savings in 2011, it proposed drastic cuts in social care by restricting support to those whose needs were ‘critical’, withdrawing services for many whose needs were ‘substantial’. It lost a high-profile Judicial Review of its consultation because it failed to provide the required information, and made it impossible to satisfy the ‘due regard’ test in Equalities legislation. Countless other cases have been decided similarly as public bodies struggle to show the true impact of their proposals.

Misleading consultees can be a serious matter; it led the Royal Brompton Hospital to challenge the NHS’ attempt to rationalise the number of locations where it undertook complex children’s cardiac surgery. Although it lost in the end, the Royal Brompton case confirmed the need for a consultation to provide the opportunity for a genuine dialogue based upon properly determined options. Just getting the facts wrong will not necessarily lose Councils a Judicial Review and a 2014 case in Salford ruled that although the Council made many mistakes, the claimants themselves were not in fact misled.

The opportunity to participate

In these days of universal online access and extensive use of social media, it is tempting to rely on these when engaging service users or the public. Over-reliance on them, however can be a problem, and an important town planning case within the last year highlighted the dangers, and ruled that since Rochford District Council’s consultation was only available online, it was unlawful. An even more recent case involving the London Oratory School similarly ruled that publishing a new Admissions Policy on the website was not enough.

Consultations affecting social care partners often involve representatives or committees of interested parties. In the 2012 case of R (ex parte SW Care Homes) v Devon CC, a Council that failed to allow the partners enough time to consider their proposals lost a judicial review. There have been many other cases over the duration of public consultation – several concerning proposed library closures.

Since the comprehensive 2008 Government Code of Practice was replaced by the Coalition Government’s set of ‘Principles’, it has been supposed by many that the previous ’12 week’ rule no longer applies. In fact this is not the case for Councils who have a COMPACT with the local voluntary and community sector. In all likelihood such local agreements will specify 12 weeks as the default, and unless Councils have sought to change these arrangements, they will, in all probability, lead to a ‘legitimate expectation’ that 12 weeks will apply.

Pre-determination

The most important recent change in the law of consultation is the landmark decision in the

Supreme Court last October. In R (ex parte Moseley) v London Borough of Haringey, the Court decided that the Council had consulted unlawfully by only offering a single preferred option to the public. Although this was a case about new local schemes for Council Tax benefit, the judgment is considered by lawyers to represent a major shift in judicial policy – placing the onus firmly on public bodies to explain why there may only be one viable option on offer.

From now on, therefore, Councils have to be very careful to undertake their options appraisal very carefully and avoid being tempted to rush to a single solution and merely consult on that proposal.

CONCLUSIONS

Virtually every Council in the land are either already, or will shortly become involved in service transformation plans. Most of these will mean working in close collaboration with Clinical Commissioning Groups and NHS service providers – all of whom are under a separate statutory duty to involve their patients and the general public. NHS England’s Guidance on service changes already prescribes best practice for the fullest engagement with Health Overview and Scrutiny Committees, so Councillors sitting on such bodies are unlikely to countenance lower standards of consultation by their own authorities when demanding full compliance from the NHS.

The public responds well to sensible proposals, well argued by committed and trusted clinical or professional leaders. Anything less and the public’s fears and anxieties are aroused leading to vigorous campaigns to safeguard the status quo. This paper has highlighted just some of the pitfalls that lie in wait for Councils that may have underestimated the legal and operational difficulties that arise if public engagement and consultation has not been properly designed into the change process.

The recent EY (Ernst & Young) Report ‘Creating a better care system’ has concluded, inter alia, that the current fragmented commissioning structures compound the problem caused by the serious underfunding of the care system as a whole. It places a real premium on securing change rapidly and without the delays and conflicts inevitable from legal challenges or if local people feel they have not been properly consulted.

The Institute View

  • Councils must prepare properly for transformation initiatives. Project teams should include Communications and Engagement specialists and take legal advice before determining the extent of public involvement likely to be necessary; the highest possible standards of options development practice may be needed.
  • Cabinet leads and backbench Councillors all need to be aware of the pitfalls inherent in pre-determination and avoid statements, social media blogs, media interviews or articles that might suggest that service change decisions have already been taken. Short training sessions to minimise risks are available from the Institute.
  • There needs to be better inter-working between the plethora of NHS organisations and local Councils. Health & Wellbeing Boards must exert more leadership, and assume ownership of major system-wide change proposals.
  • For the most controversial changes, there is a strong case for an independent Quality Assurance for the required public consultations.

Relevance

This Briefing is of relevance to Directors/Senior Managers in Adult Social Care, Children’s services, Local Authority Heads of Finance and Legal, Consultation Officers, Social care commissioners, NHS Managers and Senior Managers from the Voluntary & Community organisations.

 Further insights

  •  This Briefing was written by Rhion Jones LL.B, Programme Director of the Institute who will be available for discussion with Institute members and supporters. Telephone the Institute on 01767 318350
  • Legal Judgments referred to in this Briefing include:o R (ex Parte LH) v Shropshire County Council [2014] EWCA Civ 404 o R (ex parte W) v Birmingham City Council [2011] EWHC 1147 (Admin) o The Royal Brompton Hospital v The Joint Committee of PCTs [2102] EWCA 472 o Kendall v Rochford District Council & DCLG [2015] EWHC 3866 (Admin) o              R (ex parte SW Care Homes) v Devon County Council [2012] EWHC 1967 o R (ex Parte the London Oratory School) v The Schools Adjudicator [2015] EWHC 1012 (Admin) o R (ex parte Moseley) v London Borough of Haringey  [2014] SC 56
  • The Institute runs public training courses on The Law of Consultation, and in-house Workshops entitled Implications of the Law of consultation – an opportunity to apply the principles to local situations and emerging plans.
  • The Institute offers full and partial Quality Assurance for important consultations.Contact Rhidian Jones on Rhidian@consultationinstitute.org or 01767 318350

Briefing Notes are published by the Institute in good faith as a member benefit, but the information provided cannot be relied upon as constituting advice giving rise to any legal or other liability whether express or implied.

This is the 14th Briefing Note; a full list of subjects covered is available for Institute members and is a valuable resource covering so many aspects of consultation and engagement

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