T, R (On the Application Of) v Trafford Metropolitan Borough Council

When a public authority voluntarily consults, common-law fairness requires a properly conducted consultation. That does not invariably require consultation on arguable but rejected alternatives. Whether such consultation is necessary depends on the statutory or common-law context, the purpose of the consultation, the consultees and the circumstances. An authority may lawfully consult on its preferred option where it has carefully considered alternatives and has not positively misled consultees. A consultation is unlawful if it presents the preferred proposal as inevitable when realistic alternatives exist. The court should also consider the practical consequences of relief, while recognising the importance of a lawful democratic consultation process.

The claimant, a disabled adult dependent on supported care, challenged Trafford Metropolitan Borough Council’s consultation on proposed reductions to its adult social care budget for 2015/2016. Permission was granted on one ground and refused on another. The remaining challenge alleged that the Council had failed to provide adequate information about alternatives, particularly increasing council tax or using reserves to reduce the proposed cuts. The issues were whether common-law fairness required consultation on those rejected alternatives and, if so, whether the Council had discharged that duty.

1. Claim dismissed. The Council was not under a common-law duty, in the circumstances, to consult on arguable but discarded alternatives to its preferred reductions in adult social care spending.
2. The principles in R (Moseley) v London Borough of Haringey [2014] UKSC 56 confirm that fairness is context-sensitive. It may sometimes require consultation on rejected alternatives, including where fairness requires passing reference to them. The fact that consultation has been undertaken does not create an automatic duty to consult on every possible alternative.
3. The present consultation was voluntary and concerned five areas of the Council’s overall budget. There had been no predetermination of the detailed impact of reductions. The Council had carefully considered increasing council tax and using reserves, and was entitled to conclude that those options were not realistic. The principles stated in R (United Company Rusal plc) v The London Metal Exchange [2014] EWCA Civ 1271, including the wide discretion as to the options on which to consult, remained applicable.
4. The Council had not positively misled consultees. It was lawful to present the Council’s considered position that council tax increases or use of reserves were not realistic, and to focus consultation on service savings. This differed from the misleading consultation condemned in R (Moseley) v London Borough of Haringey.
5. Even if there had been a specific duty to consult on rejected alternatives, the information provided would not have been sufficient to discharge it. The budget report, mythbuster sheets and video gave the public an overview of the Council’s reasons, but the more detailed information in the evidence was not generally available in the consultation materials.
6. The Council’s alternative argument that relief should be refused because it would harm good administration was rejected in the event that the consultation had been unlawful. Although delay and administrative consequences were relevant under R v Monopolies Commission, ex parte Argyll plc [1986] 1 WLR 763, they would not alone justify refusing relief where a lawful consultation had not occurred.

The judgment describes an earlier paper refusal of permission by Blake J. At an oral hearing on 9 February 2015, Mr Justice Stewart granted permission on Ground 1 and refused permission on Ground 2. The substantive judicial review hearing followed on 16 February 2015.