British Dental Association v General Dental Council

A consultation is unlawful where consultees cannot test the reliability of the assumptions said to justify a proposed fee. A public commitment to transparency may create a legitimate expectation that the consultation will provide enough information for an informed and intelligent response, including information permitting consultees to assess alternatives. The consulting body retains a broad discretion as to the scope and presentation of consultation. However, a fundamental gap in information going to the central financial model cannot be overlooked. Re-consultation is required only where a later change is so fundamental that it would be conspicuously unfair to proceed without giving consultees a further opportunity to respond.

The British Dental Association sought judicial review of the General Dental Council’s decision of 30 October 2014 fixing the 2015 annual retention fee for dentists at £890. It alleged that the consultation had failed to disclose sufficient information about the assumptions linking increased complaints to a projected increase in fitness to practise hearings and had failed to re-consult after later analysis and revised estimates.

The GDC argued that it had consulted fairly, conscientiously considered the responses, and made a beneficial reduction from the proposed fee. The central issues were whether the consultation was sufficiently transparent and whether subsequent changes required further consultation.

1. Consultation duty. The common law duty of fairness did not, on the facts, independently require consultation. The individual financial impact of the fee increase was not sufficiently profound to engage that duty.
2. Legitimate expectation and transparency. The GDC’s repeated public commitments to transparent financial information created a legitimate expectation that consultees would be able to test the assumptions underlying the proposed fee and consider alternatives. A fair consultation therefore required sufficient information to enable an informed and intelligent response, including information allowing consultees to assess the robustness and reliability of the financial model, applying the approach in Eisai Ltd v National Institute for Health and Clinical Excellence (NICE) [2008] EWCA Civ 438.
3. Defect in the consultation. The consultation gave no adequate explanation for the projected exponential increase in fitness to practise hearings, although those hearings were the principal driver of costs. It omitted key information about closure rates and trend data. That omission was fundamental to the justification for the proposed £18 million increase and made the consultation unlawful.
4. Re-consultation. The applicable question was whether the later change was so fundamental that it would be conspicuously unfair to proceed without further representations, following R (on the application of Elphinstone) v Westminster City Council [2008] EWHC 1287 (Admin). The revised estimates reduced the proposed increase and the KPMG report was broadly supportive of the assumptions. Neither constituted a fundamental change requiring re-consultation.
5. Order. Permission was granted and the annual retention fee consultation was declared unlawful. The question of any further relief was adjourned for submissions.

First-instance judicial review in the Administrative Court. No prior appellate decision is stated in the judgment.