Stirling, R (on the application of) v London Borough of Haringey

Fair consultation depends on the statutory context and the circumstances of the case. Where legislation requires consultation on a published draft scheme, fairness does not ordinarily require the decision-maker to set out and explain every rejected alternative. A consultation must contain sufficient reasons to enable an intelligent response to the proposal actually under consideration. If new material emerges during consultation, there is no universal requirement to re-consult whenever circumstances change. The court must take a holistic view, considering the material’s nature and significance, whether it is publicly available, and the practical consequences of further consultation.

The appellant challenged the respondent local authority’s Council Tax Reduction Scheme under section 13A and Schedule 1A to the Local Government Finance Act 1992, as amended. The challenge alleged that consultation was unlawful because the authority had not identified rejected funding alternatives or drawn attention to a subsequently announced transitional grant scheme.

Underhill J dismissed the judicial review claim. The Court of Appeal dismissed the appeal. Lord Justice Pitchford agreed with the result but preferred a broader construction of the statutory consultation obligation.

1. Appeal dismissed. The consultation challenge failed.
2. The court endorsed the four basic requirements stated in R v North and East Devon Health Authority, Ex p Coughlan: consultation must occur while proposals are formative; provide sufficient reasons for intelligent consideration and response; allow sufficient time; and be conscientiously considered. Only the second requirement was in issue.
3. On the majority reasoning of Sullivan LJ, with which the Chancellor agreed, paragraph 3(1) of Schedule 1A to the Local Government Finance Act 1992 prescribed consultation on the authority’s draft scheme and persons likely to have an interest in its operation. It did not require consultation on options which the authority had rejected, still less an explanation of why they were rejected. R (on the application of Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts and Nicol v Gateshead Metropolitan Borough Council concerned consultation where consultees were invited to consider options. They did not establish a general rule requiring rejected alternatives to be disclosed.
4. Even on a more open-textured approach, the omission of raising council tax, reducing services or using reserves did not make the consultation unfair. Those possibilities were reasonably obvious, the open-ended question allowed them to be suggested, and the authority was aware of them and considered them in its reports.
5. The transitional grant scheme was relevant new material. However, a “fundamental change” test was not appropriate where a new factor emerged during consultation rather than a new proposal being adopted after consultation. Fairness required a holistic assessment, including the significance and public availability of the material and the cost and delay of further consultation. The grant would not remove the substantial funding shortfall and was publicly available. Re-consultation was therefore unnecessary.
6. Pitchford LJ preferred to construe paragraph 3(1)(c) more broadly, as extending to whether the burden should fall only on those interested in the scheme. Nevertheless, he agreed that the alternatives were obvious, the consultation invited views on fairness, and the responses were properly analysed. The anonymity application was refused because open justice was the general rule and no sufficient justification was shown.

• Court of Appeal (Civil Division) [2013] EWCA Civ 116: appeal dismissed.
• Administrative Court, Queen’s Bench Division: Underhill J dismissed the claim for judicial review of the Council’s decision dated 17 January 2013. The appealed order was dated 7 February 2013; no neutral citation is stated.