M and S, R (on the application of) v London Borough of Haringey

When a public authority undertakes consultation, it must provide sufficient information to permit intelligent consideration and response, present its proposal fairly, and conscientiously consider the responses. Consultation about a proposal may properly invite views on alternatives, but the authority need not develop every alternative in detail where those alternatives are reasonably obvious and consultees can raise them. A change in circumstances does not ordinarily require re-consultation. Re-consultation is generally required only where the change is fundamental to the proposals or to the choice being consulted upon. Minor inaccuracies or opportunities for improvement do not necessarily make consultation unlawful.

The claimants, both single mothers receiving full council tax benefit, challenged Haringey Council’s adoption of a Council Tax Reduction Scheme. The scheme reduced working-age claimants’ support by approximately 20 per cent, while protecting pensioners. The claim originally alleged irrationality and inadequate consultation, but only the consultation ground was pursued.

The challenge concerned the information given about alternatives, the accuracy of the estimated funding shortfall, and the Council’s failure to re-consult after the Government announced a Transitional Grant Scheme. The central issue was whether those matters rendered the consultation procedurally unfair.

1. Application dismissed. The Council’s consultation was lawful and all three grounds of challenge failed.
2. The governing principles were those in R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213, restating the Gunning criteria. Consultation must occur while proposals remain formative, provide sufficient reasons and information for intelligent consideration and response, allow adequate time, and involve conscientious consideration of the product of consultation.
3. Fair consultation about a proposal inevitably involves inviting and considering views about possible alternatives. It would have been preferable for the Council to identify the alternatives it had considered and rejected, with headline reasons. However, the omission did not make the exercise fundamentally unfair. The alternatives were reasonably obvious, the consultation did not prevent consultees raising them, and the Council was already aware of them.
4. The estimated £5.7 million shortfall was described as a maximum and was liable to adjustment when more precise information became available. The claimant could not show that the figures were inaccurate when published. Even if technical adjustments should have been included, the difference would not have been material to consultees.
5. The Transitional Grant Scheme did not require re-consultation. Although fairness would have required reference to it had it existed when the original consultation was prepared, re-consultation is not required whenever circumstances change. There is a balance between fully informed consultation and stability and good order in decision-making. Ordinarily, the change must be of a very fundamental character, or create a fundamental difference between the consulted proposals and those intended to be adopted. The grant did not fundamentally alter the choice before the Council and was only an additional factor in the balance.
6. The Council had been fully informed about the grant and had considered it. The court left open the fallback question whether relief should have been refused even if a consultation breach had been established.