Berry, R (on the application of) v Cumbria County Council

Lawful consultation requires a genuine opportunity to influence a proposal while it remains formative. Consultees must receive sufficient information and time to respond, and the decision-maker must conscientiously consider the responses. The assessment is practical and context-sensitive. A fixed consultation period is a useful yardstick, not an inflexible rule.

Standing is construed broadly. A service user may have a sufficient personal interest where proposed changes may adversely affect the service from which she benefits, even if she will not herself have to pay the proposed charge. A consultation process may be lawful through representative bodies rather than individual consultation of every affected person.

The claimant, an elderly day-care service user, challenged two decisions by the defendant local authority to introduce charges for day-care services. She alleged inadequate consultation, failure to comply with the Cumbria Compact, and failure to take consultees’ views into account. The authority also disputed her standing because her income meant that she was unlikely to pay the charge.

The February decision followed a limited consultation beginning shortly before the decision and was supported by inadequate information placed before the council. A wider consultation followed before the September decision to reaffirm the charges. The issues were whether the claimant had standing and whether either decision was unlawful for want of fair consultation.

1. Standing. The claimant had a sufficient personal interest. A reasonable apprehension that other users might withdraw, undermining the structure and social benefits of the day-care service on which she relied, was enough. Standing has a broad construction and the threshold is comparatively low.
2. Consultation principles. The recognised Gunning principles applied. Consultation had to occur while proposals remained formative, provide sufficient reasons and information for intelligent consideration, allow adequate time for response, and require the decision-maker conscientiously to take the product of consultation into account. Consultation could be conducted through representative bodies; individual consultation with every service user was unnecessary.
3. February decision. The consultation was inadequate. The initial group consulted was too small, the time available after the formal process began was insufficient for a properly reasoned exercise, and the council papers did not adequately record the concerns raised by voluntary organisations. The decision was therefore unlawful.
4. Cumbria Compact. The Compact was more than a wish list but less than a contract. Its 12-week period was a yardstick indicating an appropriate period for a major service change, rather than an inflexible contractual requirement.
5. September decision. The later process was fair and lawful. It had to be assessed in the context of the wider process beginning the previous October. A substantially wider range of consultees responded, detailed material was gathered, and officers fully and frankly reported the concerns to the council. The application therefore failed in terms of liability and relief, although the February challenge succeeded in substance. No order for costs was made.

This was a first-instance judicial review in the Administrative Court. The application challenged decisions made by Cumbria County Council on 15 February 2007 and 13 September 2007.