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

Where a local authority proposes to close a day centre, procedural fairness ordinarily requires consultation with that centre’s users and carers before the decision is made. Earlier consultation about a general reconfiguration, even where it discloses that unidentified centres may close, does not replace consultation on the proposed closure of a particular centre.

The court determines what fairness requires. Once the affected persons have been consulted, the authority has substantial discretion over the wider scope and method of consultation. The public sector equality duty concerns the lawfulness of the decision-making process, rather than the adequacy of the substantive solution.

The appellant was a disabled adult with substantial care needs who attended Hartleys Day Centre. Shropshire Council undertook extensive consultations about personal budgets and the general reconfiguration of adult day services. Those consultations disclosed that fewer building-based centres would be required, but they did not identify Hartleys for closure.

The Council subsequently decided to close Hartleys without consulting its users and carers about that specific proposal. The Administrative Court, in [2013] EWHC 4222 (Admin), rejected challenges based on procedural fairness and section 149 of the Equality Act 2010. The central issues on appeal were whether fairness required centre-specific consultation and whether the Council had complied with the public sector equality duty.

1. Appeal allowed and declaration granted. The Council acted unlawfully by failing to consult Hartleys Day Centre’s users and carers before deciding to close it. The general consultations held in 2011 and 2012 did not address a proposal to close Hartleys or any other identified centre. The closure of a day centre was sufficiently serious for its users and carers to require consultation about that particular closure. There was no material distinction from the consultation required before closing a residential care home. [21]–[26], [31], [38]

2. The common law duty arose because the users had enjoyed a benefit which procedural fairness protected. A lawful consultation required a proposal, consultation before the decision, a reasonable opportunity for affected persons to make representations, and conscientious consideration of their objections. Reasons for the proposal also had to be provided. Consultation with the affected body of users and carers was sufficient; individual consultation was unnecessary. [21]–[24], [28]

3. Fairness was for the court, rather than the authority, to determine. The Council could not invoke its discretion over consultation methods to avoid the antecedent question whether the users and carers of the particular centre had to be consulted. Once consultation with those directly affected had occurred, the extent of any wider consultation was generally for the Council, subject to the ordinary limits of its discretion. If retaining one centre would lead to another being selected for closure, the users of the newly affected centre would also have to be consulted. [27]–[30]

4. The Council had otherwise complied with section 149 of the Equality Act 2010. Its consultations and Equality Impact Needs Assessment showed due regard to the statutory equality needs, and the decision-maker was entitled to rely on that assessment. The public sector equality duty concerned the lawfulness of the process, not the adequacy of the substantive solution. Any equality-duty failure arising solely from the omitted consultation added nothing to the common law breach; there was no wider statutory breach. [32]–[34]

5. The court refused to quash the closure decision or compel a retrospective consultation. The centre had closed and its staff had dispersed, so those remedies would have been contrary to good administration and unnecessarily formalistic. A declaration of unlawfulness was nevertheless appropriate. The court also made no order on either party’s application to adduce further evidence. [35]–[39]

1. Court of Appeal (Civil Division): Allowed the appeal from [2013] EWHC 4222 (Admin). It declared that the Council had breached its common law duty by failing to consult the day centre’s users and carers before deciding to close it, but refused quashing and mandatory relief.
2. Administrative Court: HH Judge Sycamore rejected the procedural-fairness and public sector equality duty challenges, finding that the public understood that day centres would close: [2013] EWHC 4222 (Admin).