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Fairness and a public body’s duty to consult

Date:4 NOV 2014
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Solicitor Advocate
Consultation: a first outing in Supreme Court

The extent to which a public body has a duty to consult interested persons is currently in the family law news. Attention was drawn to practitioners’ attention in these notes over the present plans of the Home Office for an inquiry into child sexual abuse (Child Sex Abuse Inquiry: consultation in connection with the terms of reference of the forthcoming child sex abuse inquiry). It may apply with the variety of recent consultations issued by the Courts and Tribunals Judiciary in relation to family proceedings, due for reply to Sir James Munby P in two cases by 3 October 2014 (a period of barely 2 months including August which, says the Cabinet Office, should be ignored). Consultation over single parent rights to housing benefit (see below), to old peoples’ rights as to their local authority accommodation and foster children’s rights in their foster home: all, at one time or another, have fallen foul of statutory, and sometimes common law, rights to consultation.

R (ota Mosley) v London Borough of Haringey [2014] UKSC 56 represents the first time the extent of a right to be consulted – a statutory and common law mix – has reached the Supreme Court. In ota Mosley the court considered how a statutorily dictated consultation process should be undertaken by a public body (in that case, a local authority housing department). In so doing, the Court considered what forms of consultation might be required in a statutory context; or might be relied upon at common law.

‘Legitimate expectation’

Lord Wilson (with whom Lord Kerr agreed) gave the first and main judgment; followed by a short judgement from Lord Reed (with whom Lady Hale and Lord Clarke agreed). The latter were therefore in the majority on the aspect which separated the respective SCJJ. Lord Reed stressed that there is ‘no general common law duty to consult persons who may be affected by a decision’ (para [35]); but explained (as Lord Wilson had already done) that where there is a ‘legitimate expectation of such consultation’, a common law duty arises:

'[35] … A duty of consultation will … exist in circumstances where there is a legitimate expectation of such consultation, usually arising from an interest which is held to be sufficient to found such an expectation, or from some promise or practice of consultation. The general approach of the common law is illustrated by the cases of R v Devon County Council, Ex p Baker [1995] 1 All ER 73 and R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213…'
The passage which separated the majority from Lords Wilson and Kerr was Lord Reed’s explanation of how he saw a consultation process working. This must be ‘to ensure public participation in the local authority’s decision-making process’:

'[39] In order for the consultation to achieve [the objective of public participation], it must fulfil certain minimum requirements. Meaningful public participation in this particular 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 the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of the draft scheme. That follows, in this context, from the general obligation to let consultees know “what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response”: R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213, para 112, per Lord Woolf MR.'
The role of fairness in consultation is generally derived from R v North & East Devon HA exp Coughlan [1999] EWCA 1871); and ota Mosley support the formulation of fairness of Lord Woolf MR in the earlier case, where he said:

'[108] It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken.'
The application by Ms Mosley

Ota Mosley was an application by a single mother and resident of Haringey who, until 1 April 2014 had received full council tax benefit. After that she was subject to a new scheme. Lord Wilson explained this as follows:

'[2] … From 1 April 2013, however, local authorities were required to operate a new scheme, entitled a Council Tax Reduction Scheme (“CTRS”), which they were required to have made for themselves. Before making a CTRS, local authorities were required to consult interested persons on a draft of it. Between August and November 2012 the London Borough of Haringey (“Haringey”) purported to consult interested persons on its draft CTRS, following which it made the scheme in substantial accordance with its draft.

[3] In these proceedings [Ms Mosley] until 1 April 2013 had been in receipt of what I will describe as full CTB (by which I mean at a level which had relieved them entirely of their obligation to pay council tax), applied for judicial review of the lawfulness of the consultation which Haringey had purported to conduct in relation to its draft CTRS.'
Lord Wilson explained that the judicial review application before the court (at para [3]) was that ‘Ms Mosley asked the court to quash the decision which on 17 January 2013 Haringey had made in the light of the consultation’ they had undertaken. Underhill J had dismissed the application (at [2013] EWHC 252 (Admin)); and the Court of Appeal dismissed an appeal from Underhill J.

The consultation required to be undertaken by Haringey was statutory. Local Government Act 1992 (as amended) Sch 1A para 3 provides: ‘(1) Before making a scheme, the authority must … (c) consult such other persons as it considers are likely to have an interest in the operation of the scheme’. Haringey published a draft scheme and, as Lord Wilson puts it (at para [10]) ‘purported to embark on the consultation required of it by paragraph 3(1)(c)’. The point at issue was that in presenting their draft scheme they treated the persons whom they considered likely to have an interest – of whom Ms Mosley was unquestionably one – as being able to understand the options which they had discarded. (Lord Wilson confessed himself to be in difficulties in understanding the options himself: para [31]). In making that assumption, the local authority was at fault.

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Duty to consult: fairness and views of those ‘whose rights are significantly affected’

A duty consult arises, says Lord Wilson, ‘in a variety of ways’; but in particular by the common law duty on a public body ‘to act fairly’. Where the common law infers a duty, it can be ‘illumined by the doctrine of legitimate expectation’:

'[23] … irrespective of how the duty to consult has been generated, that same common law duty of procedural fairness will inform the manner in which the consultation should be conducted.

[24] Fairness is a protean concept, not susceptible of much generalised enlargement. But its requirements in this context must be linked to the purposes of consultation. In R (Osborn) v Parole Board [2013] UKSC 61, [2013] 3 WLR 1020, this court addressed the common law duty of procedural fairness in the determination of a person’s legal rights. Nevertheless the first two of the purposes of procedural fairness in that somewhat different context, identified by Lord Reed in paras 67 and 68 of his judgment, equally underlie the requirement that a consultation should be fair.'
So a consultation must be fairly conducted and fair. Lord Wilson continued by setting out his and, from ota Osborn (above), Lord Reed’s views of the main bases for fairness:

'[24] … First, the requirement “is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested” (para [67] of Osborn). Second, it avoids “the sense of injustice which the person who is the subject of the decision will otherwise feel” (para 68). Such are two valuable practical consequences of fair consultation. But underlying it is also a third purpose, reflective of the democratic principle at the heart of our society. This third purpose is particularly relevant in a case like the present, in which the question was not “Yes or no, should we close this particular care home, this particular school etc?” It was “Required, as we are, to make a taxation-related scheme for application to all the inhabitants of our Borough, should we make one in the terms which we here propose?”'
In ota Osborne Lord Kerr explained ‘procedurally fair decision-making’ as he saw it. This is needed to avoid, first, a sense of injustice; and this is avoided, secondly, by engendering in those who should be entitled to be involved in the process, a sense that their views are respected. He concluded the passage from ota Osborne (paras [68] and [69])by stressing the importance he attached to the decision-maker having ‘respect for the dignity’ of consultees. Thus:

[68] … Respect entails that such persons ought to be able to participate in the procedure by which the decision is made, provided they have something to say which is relevant to the decision to be taken. As Jeremy Waldron has written ("How Law Protects Dignity" [2012] CLJ 200, 210):
"Applying a norm to a human individual is not like deciding what to do about a rabid animal or a dilapidated house. It involves paying attention to a point of view and respecting the personality of the entity one is dealing with. As such it embodies a crucial dignitarian idea – respecting the dignity of those to whom the norms are applied as beings capable of explaining themselves."'

Lord Wilson adds a third basis for consultation to Lord Kerr’s list: namely that a public body decision-maker should offer as an option that a consultee may wish to propose other options; or the decision-maker may set out other options considered by him/her but rejected (see eg R (ota United Company Rusal Plc v The London Metal Exchange [2014] EWCA Civ 1271).

Declaration: failure to consult not fair

Ota Mosley concluded by holding that declarations as to the unfairness of the new schemes should be made; but that it was disproportionate for the scheme to be sent back and a further consultation be undertaken. Lord Wilson himself had difficulties on the papers before the court in understanding why Haringey had decided to reject all options. Thus, he said:

'[31] Haringey’s message to those consulted was therefore that other options were irrelevant and in such circumstances I cannot agree that their assumed knowledge of them saves Haringey’s consultation exercise from a verdict that it was unfair and therefore unlawful.'
The view of the majority, expressed by Lord Reed was to concentrate more on the statutory aspect of this particular consultation. That said, general comments adopted by all Supreme Court justices make it clear that the requirement for consultation derives from legitimate expectation; and that that involves, amongst other matters, a consideration of the reasonably applicable options.

Fairness is a general aspect in any consultation. The difference between Lords Wilson and Kerr and the majority on the general principle is minimal; and can mostly be traced to whether the duty to consult arises from statute; or whether the duty is to be inferred – eg by reference to legitimate expectation – from common law.

This article was co-written by Cathryn Smith, Associate Solicitor, Family Law Company.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
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