Baker, R (on the Application of) v Devon County Council

Before a local authority closes a residential home, procedural fairness ordinarily requires residents to know of the proposal while it remains formative, receive sufficient reasons, have adequate time to respond, and have their representations conscientiously considered. Consultation need not be individual or face to face; collective meetings or representations through a support group may suffice. A statutory consultation process does not displace a separate common-law duty to consult affected residents. Judicial review remains available where the principal issue is the legal content of fairness, despite an alternative statutory default remedy. A promise of consultation may create a procedural expectation, but relief may be unnecessary where all relevant representations were in fact made and formal compliance would add nothing.

Two conjoined appeals concerned the proposed closure of local-authority residential homes for elderly people. In Devon, residents of Tory Brook and Ingleside relied partly on letters promising consultation and challenged the decisions to close those homes. In Durham, residents of Ridgeway House received notice only five days before the Social Services Committee considered closure.

Popplewell J dismissed both applications for judicial review on 9 July 1992. The appeals raised whether fairness required consultation before closure and whether the Secretary of State’s default powers under section 7(D) of the Local Authority Social Services Act 1970 provided an alternative remedy preventing judicial review.

The three judges agreed in the result. Dillon LJ delivered the principal judgment. Farquharson LJ agreed with both judgments, and Simon Brown LJ agreed entirely with Dillon LJ while adding analysis of the two central legal issues.

1. Consultation. Fairness required affected residents to know that closure was being considered while the proposal was still formative, to have a reasonable opportunity to make representations, and to have their objections considered. Simon Brown LJ also endorsed the four-part formulation in R. v. Brent London Borough Council, ex parte Gunning (1986) 84 LGR 168: formative proposals, sufficient reasons, adequate time, and conscientious consideration. The precise content remained fact-sensitive. Individual or face-to-face consultation was unnecessary where collective meetings or representative groups provided an effective opportunity to respond.
2. Devon. Residents had long known of the possible closures, had ample time to organise objections, and had placed their views before the councillors. Although the Russell letters created an expectation of consultation, no further relevant material would have been added by literal compliance with the promises. Judicial review was therefore refused and the Devon appeal dismissed.
3. Durham. Residents were enjoying an existing benefit and were entitled to procedural fairness before its withdrawal. The five-day letter did not give sufficiently early notice or adequate time to make representations about closure. Procedural unfairness was established. The appeal was allowed, subject to further argument on the precise form of relief, and the order concerning relief was set aside. Durham County Council undertook to consult the residents and their advisers about their future and that of Ridgeway House.
4. Alternative remedy. It was unclear whether the consultation duty itself was a social-services function within section 7(D) of the Local Authority Social Services Act 1970. Even assuming that the Secretary of State could intervene, judicial review was the more appropriate avenue because the issue required authoritative resolution of a legal question. The Devon appeal was dismissed with costs; the Durham appeal was allowed with costs here and below.

1. Court of Appeal (Civil Division) — In [1992] EWCA Civ 16, the Devon appeal was dismissed and the Durham appeal was allowed, with relief dealt with by undertaking and further argument.
2. High Court of Justice, Queen’s Bench Division — Popplewell J dismissed both substantive applications for judicial review on 9 July 1992.