The consultation process

In the first of a two-part series, Linda Walker last week looked at the implications for local authorities of the Birmingham City Council adult care eligibility case. This week she examines the vital issue of consultation.

Following on from my recent article about the case involving Birmingham City Council breaching its equality duties, R (on the application of W) v Birmingham City Council: R (on the application of M. G and H) v Birmingham City Council (2011), in this article I look at the importance of undertaking a proper consultation process when changes to services are under consideration. In this case Birmingham were found to have failed to conduct an adequate consultation process when it was considering restricting adult care services to those whose needs were “critical”.

The parties agreed in this case that a consultation process should have provided consultees with sufficient reasons in support of particular proposals to allow an intelligent response to be made, and ought to have ensured that the responses were conscientiously taken into account when the ultimate decision was made. Mr Justice Walker stated that his conclusion as to the failure to comply with s49A of the Disability Discrimination Act 1995, inevitably carried with it the conclusion that the consultation was inadequate. The fact that the decision-making process failed to address the right questions, consequently meant that the same was true of the consultation process.

He found certain features of the consultation process “troubling” and the consultation was deemed not to have “involved any attempt to look at the practical detail” of what the move to restrict adult care services to those classified as “critical” would entail. In particular, he considered the words initially used by the council – a move to a “funded service for only those of low means who are critical” as leading consultees to believe that needs unrelated to “personal care” would not be supported.

What is more, the consultation process failed, until a very late stage, to make clear that the proposed saving of £33.2 million in 2011/12 involved a saving which had nothing to do with the move to “critical only” care services. Although there was some evidence that the position was understood, the judge believed that there remained considerable scope for confusion for those to whom the consultation had been addressed. He was particularly concerned that the consultees did not get the opportunity to assert that the true sum involved in retaining care services for those with “substantial” as the criteria for eligibility, was a sum which could be properly found by making savings elsewhere. For these reasons he concluded that even if the council had asked itself the right questions, the consultation process had not complied with what the law requires.

So what does the law require?

Judicial guidance on this issue developed during the 1990’s. This culminated in the requirements for a proper consultation process being set out in R v North and East Devon HA exp Coughlan [2001] QB 213.

To be proper, a consultation must be undertaken at a time when proposals are still in the formative stages.

The consultation must include sufficient reasons for particular proposals to allow those consulted to give informed consideration and an intelligent response.

Adequate time must be given for consultees to formulate a viewpoint.

The product of the consultation must be conscientiously taken into account when the ultimate decision is taken.

This is established law and should be followed in all situations where consultation is being undertaken. Birmingham Council has stated that it will re-run the consultation and make decisions about adult social care “consistent with the need to analyse the potential impact on disabled people”.

In cash strapped times, the public sector must do its utmost to avoid the consequences of cuts falling on those who are least able to bear them. This case demonstrates the legal obligations that authorities must comply with and clarifies that proper procedures should be followed even in times of austerity.

When it comes to the consultation process itself, it must be a meaningful consultation, both in relation to the information that is provided to the consultees and the consideration of their response. Other councils (and indeed other public authorities) who ignore this guidance and the lessons learned by Birmingham, do so at their peril…

Linda Walker is Head of Public Law and Corporate Governance at national law firm Dickinson Dees. She can be contacted on 0191 279 9195 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..

See also: Counting the cost of cuts