Paul Feild provides a practical note on consultation procedure for local government practitioners and gives advice on how to carry out consultation which should be resilient to challenge.
Clearly in austerity times the moment of reckoning approaches where traditional well tried strategies and tactics of keeping posts vacant, business process/organisation design, efficiencies, productivity improvement, mergers and outsourcing will not alone balance the budget and services will need to be rationed or cut entirely. Furthermore take it as read if you are cutting a service that will have a detrimental effect on a current service user, it cannot be done without consulting those affected. At the same time understandably your clients may be tempted to carry out a low-profile consultation for a number of reasons, not least the cost and fear of agitation of organised and political objections. Well that’s local government. So here is a way forward. I start by setting the scene.
Consultation background – The landmark Haringey decision
A recent Supreme Court case in late 2014 involving Haringey London Borough Council and its consultation process has essentially set the last word on local authorities carrying out consultation. I therefore give some details to set the context and explain its importance.
The Coalition Government with the Welfare Reform Act 2012 and Local Government Finance Act 2012 brought changes to the Local Government Finance Act 1992 (1992 Act). It abolished Council Tax Benefit (CTB) from April 2013 and in its place council tax support took the form of a Council Tax Support Scheme (CTSS). Local authorities were expected to devise their own scheme or be required to use the government default scheme. The draw-back of that scheme was for many authorities the default arrangement resulted in a net cost to the councils. As a result many local authorities across the land devised their own schemes.
The 1992 Act in schedule 1A required the authorities to consult on their proposals with precepting authorities (e.g. the GLA) and “such other persons as it considers are likely to have an interest in the operation of the scheme”.
Two residents challenged the Haringey Council approach. They lost in both the High Court and in the Court of Appeal but persistently took their appeal to the Supreme Court. They won. The judges rejected Haringey’s approach to consultation. They heard that the council had hand delivered 3,600 letters telling the people most likely to be affected by the changes why the council was going to make the changes and seeking views.
The judges said that was the wrong approach. The key issue is that the changes in policy must be made in the light of being informed by consultation. Consulting about a proposal does inevitably involve inviting and considering views about possible alternatives.
So what does this mean in a nutshell? It means that where there is a duty to consult going through the motions will not do. If there is a prescribed method such as set out in the primary or secondary legislation or by a code it must be followed and at the stage where the consultation feedback can be taken into account in the final decision making. Furthermore the case made clear that while there is no general common law duty to consult persons who may be affected by a measure before it is adopted an obligation to consult may arise because of the common law duty of fairness .
This year (February 2016) the Cabinet Office published guidelines on consultation . These are to be treated as expectations for local government too.
What this now means for consultation
The Courts have made a restatement as to who should be consulted and on what basis for consultation. This is of general application for all consultation. The key message is that consultations must be carried out fairly. This can be summarised as Who, How, When, What and an Evidence Based Analysis:
1. Who do you consult? - In broad terms it is to let those who have a potential interest in the subject. In terms of who must be consulted the demands of fairness are expected to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit.
2. How? - So if a person is likely to lose something or be worse off, then they should be specifically identified and consulted. In Haringey all those affected were written to and the letters were hand delivered. This is considered to be sound practice. So if you know that an individual or household will be adversely affected an attempt must be made to contact them by preferably personal calling and hand delivered letters or by phone call and this be re-enforced by press releases and street and notice poster media. Twitter “tweets” or council web pages augmented with Survey Monkey are not good enough on their own. If there are partners involved in the services such as health authorities or the third sector, get them involved and seek their view on the consultation and its message even if they may one day turn out to be objectors better you are on cordial or respectful terms with them.
3. When do you consult? – So when should consultation take place? You have to do it with sufficient time to let people know what you are thinking of doing, telling them what your options are and giving them time to reflect upon it and give their views to you that you can take them into account so:
- Firstly - consultation must be at a time when proposals are still at a formative stage and give sufficient reasons for any proposal to permit a person to in the court’s words “give an intelligent consideration and response”.
- Secondly - adequate time must be given for consideration and response, and,
- Finally - the product of consultation must be conscientiously taken into account in finalising any statutory required proposals. This should be evidenced by a briefing document presented to the decision making body
4. On what basis? - The purpose of a statutory duty to consult is to ensure public participation in the local authority’s decision-making process. In order for the consultation to achieve that objective, it must fulfil certain minimum requirements. Meaningful public participation in the decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about proposals such as a draft scheme or policy, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of its preferred option.
The courts say that there is an obligation to let consultees know, “what the proposal is and exactly why it is under positive consideration”, and telling them enough (which may be a good deal) to enable them to make an intelligent response”.
5. An Evidence Based Analysis – Consultation will only be of use if the data collected from the consultation is properly handled and objectively managed.
This means there must be a sound methodology for data collection, processing and analysis. Responses must be clearly presented and not cherry picked so as to support a particular preferred approach. This means the findings of a consultation are backed by evidence and where assumptions are made reasons for doing so are identified such as for example statistics supplied by other accredited organisations such as Government sources.
What does this mean for services particularly in the context of austerity? The key message is that the quantity and quality of information may need to be re-examined. Thus any strategy or policy likely to have an impact on the community needs to be founded on proper consultation. This is best done by drawing up a consultation plan. Methodology of qualitative and quantitative collection handling and analysis needs to be stated. While judges are not expecting a full scale committee report to be sent to the public at large, effective consultation plans will need to have anyone likely to be affected specifically identified and targeted to receive information on the subject matter of the consultation and a strategy worked up on how they can be enabled to take part.
Steering Groups are a useful tool for ensuring the consultation is going to be effective. The greater the involvement of the community the better will be the outcome of the consultation in terms of evidence and data quality. If at all possible links should be forged with community representatives, bodies and established forums so as to ensure they are, as it were, on board in understanding what you are trying to do even if they may not agree with it.
There is no substitute to specific advice on a specific consultation as it is possible that the consultation will have to follow prescribed guidelines. A starter checklist is set out below to get you started.
We are in a period of austerity. There are going to be more difficult decisions, with at times fearsome cuts. The 2014 Haringey Council Tax case sets the rulebook on consultation. While it did not actually create new law, as much of what the judges said was already known as ideal practice. The shift is that best practice is no longer to be treated as the way to go if the resources are available, it is now a given.
To reiterate, the highest court in the land now expects where there is a requirement for consultation, local authorities will be expected to:
- contact all those who will be or are likely to be affected
- consult them before irreversible decisions are made with not only with information about proposals such as a draft scheme or policy, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of its preferred option
- give them adequate time to respond, for example six weeks to three months would be reasonable in most circumstances
- Following the response from the consultees’ active consideration must be given to the response.
Dr. Paul Feild is a Solicitor and Deputy Monitoring Officer at Thurrock Borough Council.
BDTLegal Governance Team
Sedley LJ in R (BAPIO Action Limited) v Secretary of State for the Home Department  EWCA Civ 1139 at -
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|Is there a statutory requirement?||
If yes – You must follow the prescribed procedure in the Act / SI and any Ministerial / Sector Guidance /Code
If No - Even if there is no statutory requirement there can be a legal requirement to consult if the measure could potentially have unfair consequences
|Have you identified what you want to consult on?||
A scoping exercise needs to be carried out and it will be a key aspect to identify at an early stage the Who, How, When, What?
|Do you know your timescales?||
Plan your consultation according to the statutory framework if there is one.
If there is no set timescale be realistic and draw out a Gantt Chart
Make sure there is time to feed back into the process data accumulated and necessary political input on policy issues is timely as elected Members may want to scrutinise the data and take their own soundings and consult with officers
|Draw out a model||Take advice on the model from legal and equalities specialists including a communications strategy plus data collection methods, handling, processing and analysis.|
|Communications Strategy||This is vital to ensure that those who have a potential interest in the subject matter know what the proposals are, why it is under consideration and telling them enough to make an intelligent response.|
Ensure there is compliance with the Data Protection Act, specifically if handling sensitive personal information.
The Data may in due course be subject to Freedom of Information requests make sure you are prepared for this; it may come from opponents to the change. Keep all data secure.
Ensure that consultees are supplied
• Timely with materials
• That there is proper access
• Given contact points
• Feedback on progress
Given there is a communications strategy try and test it before the formal consultation to ensure it functions.
It is likely that some people or groups will be affected more than others. Ensure that outreach is made as soon as follows. Perhaps they may be involved in a steering group.
Ensure that the material is easily digestible and don’t assume that they will have ready access to technology, some will some won’t.
|That the product of consultation is adequately presented so as to be taken into account for ultimate decision||The quality of the report of the response to consultation is a critical step to successful consultation. Firstly it must be objective, evidence based and reflect the full range of responses. It will often be a trigger for challenge by objectors if they consider their points have not been adequately presented. Secondly the report must be sound in its methodology throughout, if there is a weakness in data, then it is better to seek to acquire it by alternative means than make assumptions.|