In recent months, English local authorities have been conducting public consultations on the design of local Council Tax benefit support schemes, replacing the previous nationwide arrangements.

It has been a challenge, as the Government laid down strict rules for these replacement schemes – and simultaneously reduced the available money by 10%. Pensioners could not be affected, and Councils needed to re-inforce individuals’ motivation to work.

Just as most councils have brought their consultations to a close, DCLG has announced a fund of £100m as a ‘transitional grant’ in an attempt to limit the hardship for some people. Provided that schemes meet newly-published criteria, they can have financial support for the first year of their local schemes. A key condition is that those currently enjoying 100% relief will not pay more than 8.5% of their council tax liability.

This means:-

• Many councils are likely to accept this transitional grant and decide to implement schemes that differ somewhat from those they consulted upon.

• If they meet the Government’s conditions for transition grant, the net cost of some of the options consulted upon may also be significantly different.

BUT

• The grant is only a first-year windfall, and is only worth about a quarter of the shortfall (cf the national scheme) – so it is less likely to make a difference to the long-term scheme being agreed for future years.
• Many consultation responses are likely to have focused on the principles underpinning local schemes – not the detailed arithmetic.

So will Councils need to re-run their consultations?

Formal advice issued by DCLG states:-

Local authorities that have already consulted on their proposals for a scheme, will need to consider, if they want to apply for a grant, whether they will need to make changes to their proposed schemes in order to be eligible for the funding, the scale of any changes that are required and whether these require further consultation

In other words, it is up to each Council to decide whether to re-consult depending on its own circumstances.

The Institute believes that there are three key considerations:-

• How satisfactory was the consultation in the first place?

If there are doubts, this new development offers the opportunity to safeguard the Council’s position and reduce the risk of legal challenge

• Whether a new scheme that conforms to the Grant conditions will affect some residents and/or council tax benefit recipients more adversely than they were led to believe in the original consultation?

Significant changes to the scheme will require re-consultation if individuals or groups can argue that the impact upon themselves is worse than that which was outlined in the original consultation document

• Whether the Council intends to apply for the grant?

If the Council does not choose to apply, there is no need for a further consultation (provided it was a satisfactory exercise)

The Institute has worked with seven Councils to ensure their consultations met best practice standards. Elsewhere, however, we fear that many Councils will be wide open to legal challenge in the coming months, particularly if groups representing some of the Equalities categories can show that the provisions of Section 149 of the Equalities Act re having ‘due regard’ to their interests have not been observed.

It may not be too late for Councils who may be vulnerable on this count to mount a supplementary ‘listening’ exercise to talk to particular stakeholder groups or interested bodies. The Transition Grant provides a perfect opportunity.

The Institute View

• All Councils needing to agree Council Tax benefit schemes should immediately review their current or recently-completed consultations.
• If they anticipate significant change OR if they have any doubts about the consultation exercise they have completed they should either
• Undertake a fresh consultation (which could be shorter) OR
• Organise a targeted Supplementary Engagement Exercise to ensure that relevant views are gathered and properly considered
• The Consultation Institute is happy to help with either option

This Briefing is of relevance to Consultation and Public engagement staff in English local authorities, and also to Council Leaders, Cabinet members and Finance Officers who may undertake lead roles in the development of new Council Tax Benefit SchemesRelevance

Further insights

• This Briefing was written by Rhion Jones, Programme Director of the Institute,  Davy Jones, Lead Associate for local Government and Tom Fardon who may be available for discussion. Telephone the Institute Centre of Excellence in Biggleswade on 01767 318350
• The law on re-consultation is influenced by an important NHS case from 2002 (Smith v East Kent Hospitals) but its application to current situations is uncertain.  The Institute runs a training course on The Law of Consultation (7^th Nov, Manchester; 12^th Dec, London -and  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 28^th Nov  2012 in Birmingham
• The best way to avoid mistakes in a consultation is to invite the Institute either to conduct a Risk Assessment or a fully comprehensive Compliance Assessment of a consultation. This not only provides quality advice to consultors on meeting Best Practice standards but also includes a public endorsement of the exercise.
• For further information on our public training courses, in-house courses and workshops, 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 4^th 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