At first glance this is another case about the traumas of local authorities seeking expenditure reductions in difficult functions such as adult social care. Similar to the important Birmingham City Council case earlier this year, this was an attempt to apply more restrictive eligibility criteria for social care services, with the decision challenged by two residents with disabilities.

Much turns on whether or not the Council met the requirements of the statutory guidance for adult social care; the claimants also alleged a failure to observe the public sector equality duty in the (now superseded) Disability Discrimination Act. Mrs Justice Lang appears to have found in favour of the claimants on both counts.

The Council had run a public consultation, but its inadequacies were not a freestanding part of the case for judicial review. In the event, the Judge is scathing about the process. The consultation

• “provided insufficient information to enable those consulted to give intelligent consideration and an intelligent response”

• “…did not provide any detail about the numbers of users whose support would be reduced …
• “ … did not give any detail about the costs and potential savings …”
• “ …explain what services would or would not be included under revised criteria…”

In short, “Consultees, including the parents of the claimants were left uncertain as to what impact the revised criteria would have …”

“The flaw was that that the consultation responses did not, and could not, fully reflect the experiences and views of users and their carers, because they were not provided with the information they required to make an informed response.”

“ Council members were therefore deprived of important information as to the potential impact of the proposed changes ….”

The Institute View

• Judges will safeguard consultees’ rights to the fullest possible information and are dismissive of ‘high-level’ policy documents that are not meaningful to stakeholders.
• This means that authors of consultation papers must provide up-to-date, defensible facts and figures
• Detailed and proposal-specific Equality Analyses will almost certainly be required where individuals or groups in the “protected categories” look likely to be impacted
• Even when there is not legal requirement to consult, once public bodies embark upon such an exercise, they have to do it properly – ie they must conform to the ‘Gunning principles”

Relevance

This Briefing is of relevance to Directors/Senior Managers in Adult Social Care, 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, Programme Director of the Institute who may be available for discussion. Telephone the Institute Centre of Excellence in Biggleswade on 01767 318350
• The Institute runs regular Seminars on Legal Challenges to Consultations, enabling participants to hear directly from lawyers who have taken judicial review cases to the High Court. The next Seminar is on December 1^st  2011 in London, and will probably feature this and other topical cases
• Rhion Jones, accompanied by one or more lawyers from firms associated with recent relevant cases, is available for In-house Executive Briefings or Training Seminars on this subject. Contact Martin Roach

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 1^st 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