AA, R (on the application of) v Rotherham Metropolitan Borough Council

A consultation is not generally unlawful because the authority fails to identify every alternative to its preferred proposal. Fairness may require reference to discarded or hybrid alternatives where that information is necessary to enable informed and intelligent responses. The question is fact-sensitive and depends on the consultation’s purpose, the proposal, the context and what consultees could reasonably be expected to know. The court should allow the public body a broad discretion and intervene only where the process has gone clearly and radically wrong or unfair. A decision-maker must also conscientiously consider consultation responses. A decision may lawfully depart from the majority view, provided the responses have been conscientiously considered and the decision is not irrational.

The claimant, a customer of the Oaks Day Centre, sought judicial review of the defendant local authority’s decision to close it as part of the transformation of adult learning-disability services. Permission was granted on two aspects of the alleged failure to consult lawfully.

• Whether the consultation was unfair because it did not identify a hybrid option retaining the day centre while modernising provision.
• Whether the decision-makers failed conscientiously to consider the consultation responses because the officer’s report and executive summary allegedly presented them misleadingly and did not direct attention to the detailed consultation report.

The central issues concerned the second and fourth Gunning criteria.

1. The claim was dismissed. The Council’s decision to close the Oaks Day Centre was not unlawful.
2. The applicable consultation principles were those identified in R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168 and approved in R (Moseley) v Haringey London Borough Council [2014] UKSC 56. Fairness does not invariably require consultation on alternatives. It may require reference to arguable discarded alternatives where that is necessary to permit informed or intelligent responses.
3. Whether such reference is necessary is highly fact-sensitive. Relevant matters include the purpose and nature of the consultation, the proposal, the surrounding context and what consultees could reasonably be expected to know. The authority retains a broad discretion over the options put forward. The court should not retrospectively micromanage the process and should intervene only where the consultation was clearly and radically wrong or unfair.
4. On the facts, the consultation was not unfair. The process followed extensive earlier engagement, included open questions inviting alternative proposals, and exposed consultees to the concepts of modernisation and personalisation. The questions did not create an impermissibly binary choice. Consultees could propose retaining and improving the centres, and some did so.
5. The fourth Gunning criterion required conscientious consideration of the consultation outcome. It did not require the Council to adopt the majority view, since consultation was not a referendum or head count. Although the officer’s report and executive summary did not accurately convey the extent of opposition to closure, the detailed Aceppe report was listed as an appendix, the Cabinet members were aware of the longstanding opposition and Aceppe’s involvement, and the evidence supported an inference that the decision-makers had read and conscientiously considered it.
6. The court therefore declined relief. The decision was difficult and distressing for the claimant and her family, but the court’s function was to intervene only where the local authority’s decision had been reached unlawfully.