LH & CM, R (on the application of) v Shropshire Council

Where a public authority voluntarily consults, the lawful nature and extent of consultation depend on the circumstances and subject matter. The authority has a comparatively wide discretion, subject to rationality and procedural fairness. Consultation need not address proposals that are not viable, nor must it descend from a general service reconfiguration to every individual implementation decision. Fairness is assessed in the light of practical realities, and consultation concerning health or social services should not become technical or legalistic. A legitimate expectation of further consultation requires an express or sufficiently clear representation. Under section 149 of the Equality Act 2010, the authority must have adequate information and evidence to assess the impact on protected groups and discharge the Public Sector Equality Duty.

The claimants, both adults with learning disabilities, challenged Shropshire Council’s decision to close Hartley’s Day Centre and an alleged wider policy of not consulting users before closing other centres. Permission was granted to the first claimant, whose centre had closed following a county-wide consultation on the future and reconfiguration of day services. Permission was refused to the second claimant because no decision had been made to close her centre at Church Stretton, making her claim premature or academic.

The remaining issues were whether the consultation was sufficiently detailed and whether the Council had complied with its Public Sector Equality Duty.

1. Permission and prematurity. Permission was granted to the first claimant. The second claimant’s challenge was premature and/or academic because there was no decision or plan to close Church Stretton. Permission was refused.
2. Consultation. The court adopted the approach that the nature and extent of consultation depend on the circumstances. Where an authority voluntarily consults, it has a comparatively wide discretion, subject to rationality and fairness. The claimant bears the burden of showing that the decision-making approach was unfair. The duty does not extend to consulting on what is not viable.
3. Fairness had to be assessed against practical realities. The county-wide consultation addressed the future delivery and reconfiguration of day services. The evidence showed that consultees understood that some centres might close and had expressed views about those proposals. The Council had regard to that material. It was not required to undertake a separate, more detailed consultation about Hartley’s closure.
4. There was no express representation giving rise to a legitimate expectation of further consultation about each individual centre. Such additional consultation would in any event have been disproportionate and inappropriate.
5. Public Sector Equality Duty. Applying the framework in R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, the court held that the equality impact assessment and Council report contained adequate information about the impact on disabled and older users. The conclusions were open to the Council. Both challenges therefore failed, and the claim for judicial review was dismissed. Permission to appeal was refused to the first claimant.

The judgment was a first-instance judicial review decision. Interim relief had earlier been refused, and the first claimant’s application for permission to appeal was refused.