A retreat from Moseley?

Judith Barnes and Alistair Robertson analyse a recent Court of Appeal ruling on a local authority's consultation and consider how it fits with the Supreme Court ruling in Moseley.

In R (Moseley) v Haringey LBC [2014] UKSC 56 the Supreme Court considered the duties on a local authority when consulting on proposed service cuts. Haringey was found wanting, primarily on the basis that its consultation materials failed to recognise the existence of alternatives to its proposed method of responding to cuts by central government in its own budget: by cutting council tax relief by a commensurate amount.

Similar issues were in play in R (Robson) v Salford City Council [2015] EWCA Civ 6, handed down by the Court of Appeal. In this case the council was considering changing the way it met its statutory duty to make arrangements for service users travelling to use adult day centres provided by the council.

The council had hitherto provided a directly operated patient transport unit ("PTU"). It had calculated that by closing the PTU and making alternative transport arrangements for its users, it could save £600,000 per year. The council's consultation materials described the proposal as being "to assess all adults that receive the transport service to see if alternative transport options can be used". They did not expressly describe the actual proposal; to close the PTU and make alternative arrangements for transport. The claimants submitted that this was misleading (just as the consultation in Moseley had been misleading), and so unlawful.

Richards LJ did not agree. He accepted that the consultation material "presented an incomplete picture by concentrating on the proposed assessment of users of PTU services to see if alternative transport options could be used, without a clear statement that it was proposed to close the PTU itself". In that light he found that the claimants' submissions had "considerable attraction". Overall, however, he "reached the conclusion that [the claimants'] was too formalistic an analysis and that… the consultation process as a whole was not unfair."

He found that in this case the important thing for users and their carers was not the continued existence of the PTU itself, but the type of transport arrangements made for them particularly. He also found that users "can have been left in no doubt that the purpose of the proposed assessments was to see if the existing service though the PTU could be replaced in each individual case by alternative arrangements." This may be contrasted with the Supreme Court's rejection of the argument in Moseley that consultees must have known of the existence of alternative options to the one proposed, even though those alternatives were not spelled out in the consultation documents.

Richards LJ described it thus: "In Moseley the consultation material conveyed a positively misleading impression that other options were irrelevant. There is nothing equivalent to that in this case. In Moseley it was wrong to place reliance on consultees' assumed knowledge of other options for the same reason, that the message conveyed by the local authority was that other options were irrelevant. Again there is no equivalent in this case…"

Plainly, Moseley and Robson were each decided on their own particular facts. It is interesting to note, however, that the Court of Appeal in Robson was prepared to accept that consultees must have known of matters that were not spelled out to them in the consultation. It remains to be seen, but this may come to be considered as an early step backwards from a 'high-watermark' reached in Moseley. It does at least provide some comfort to local authorities implementing cuts, that imperfect consultation materials will not necessarily be held to be unlawful. It is also a clear reminder that the requirements for a lawful consultation vary according to the particular circumstances of the proposal under consideration.

It is also interesting to note Richards LJ's remarks that even if he had found against the council, he would not have quashed its decision. In part, this seems to have been because the council pressed on with the implementation of its programme of moving service users away from the PTU (although it should be noted that it suspended implementation in respect of the claimants themselves). This is an important reminder to defendants that a legal challenge should not necessarily halt implementation of a decision altogether pending judgment. In fact, when it comes to relief, it may well be in the authority's interest to have continued (as long as there were proper reasons to do so).

Judith Barnes is a partner and Alistair Robertson is an associate at DAC Beachcroft. Judith can be contacted on 0113 251 4712 or by email, while Alistair can be reached on 020 7894 6020 or This email address is being protected from spambots. You need JavaScript enabled to view it..