R (AA) v Rotherham MBC

The claimant sought judicial review of the Council's decision to close the Oaks Day Centre, relying on alleged failures in the consultation process under the common law/Gunning principles and on the Council's duty to have regard to consultation responses.

The court reviewed the Gunning criteria (formative stage; sufficient reasons to allow intelligent response; adequate time; conscientious consideration) and considered whether the second consultation unlawfully presented a binary choice (close centres and modernise by personal budgets v keep centres without modernisation) and failed to identify or consult on a "middle way" or discarded alternatives. The court also considered whether the officer's report and executive summary misrepresented the consultation outcome so that decision‑makers did not conscientiously consider the quantitative Aceppe report (Appendix E).

Applying the authorities (in particular R (Moseley) v Haringey LBC and cases discussing the high threshold for unfairness in consultation), the court held that the consultation as a whole was not clearly and radically unfair. The questionnaire and broader engagement invited open responses and the lengthy prior engagement made it reasonable to expect consultees to appreciate hybrid options. On the second limb, although aspects of the officer's report and executive summary gave a skewed impression, the court accepted that, given Aceppe's involvement and the lengthy consultation history, decision‑makers could be inferred to have had and to have given conscientious consideration to the Aceppe analysis. The claim was therefore dismissed.

Background and parties: The claimant, a long‑term user of the Oaks Day Centre with significant needs, challenged Rotherham Metropolitan Borough Council's decision (21 May 2018) to close the Oaks Day Centre as part of a reconfiguration of learning disability services. The Council framed change in light of a move towards personalised, community‑based provision and the Care Act 2014.

Nature of the claim and relief sought: The claimant applied for judicial review. Permission was limited to two sub‑grounds falling within an asserted single ground: (1) the second consultation (28 September–22 December 2017) was unlawful because it failed the second Gunning criterion by omitting an option of retaining and modernising day centres (a "middle way") and thereby prevented consultees from making intelligent responses; and (2) contrary to the fourth Gunning criterion, the decision followed defective consultation because the officer’s report and executive summary misrepresented consultation responses so that consultation results (notably the quantitative Aceppe report) were not conscientiously considered by decision‑makers.

Issues framed by the court:

• Whether the consultation unlawfully failed to identify or consult on a realistic alternative (a middle or hybrid option) so that consultees could not give an intelligent response;
• Whether the Council, having received the consultation responses (including the Aceppe analysis), gave conscientious consideration to them before deciding to close the Oaks Day Centre.

Court’s reasoning and decision: The court analysed the authorities on consultation law (Gunning criteria, R (Moseley) v Haringey LBC and subsequent decisions). It emphasised that public bodies have broad discretion about what to consult on and that the court should only intervene where the consultation was "clearly and radically" unfair.

The court found that (i) the second consultation must be read in the context of an extended consultation history (including "Together for Change", Speakup and Aceppe involvement) and that the questionnaire included open questions inviting alternative suggestions; (ii) consultees engaged in the process could reasonably be expected to appreciate potential hybrid options and to propose them; (iii) Moseley’s rule that discarded but arguable alternatives may need to be identified applies in cases where consultees could not reasonably be expected to know of realistic alternatives — the instant facts were materially different and less legally and factually arcane than Moseley; (iv) therefore the omission of an express "middle way" did not render the consultation clearly and radically unfair.

On the second limb, the court accepted that portions of the officer’s report and executive summary created a skewed impression of the consultation outcome, but it concluded that, in context (Aceppe’s role, the long engagement and the fact that Appendix E was an independent analytical report), it was reasonable to infer the Cabinet would and did give conscientious consideration to the Aceppe findings. The claimant’s inference that decision‑makers relied only on the executive summary was not the more likely inference on the facts.

Disposition: the court refused relief and dismissed the claim. The judge recorded sympathy for the claimant’s position but emphasised the limited role of the court in intervening only where decisions are unlawful.

The claim is dismissed. The court held that (i) the consultation process, read in its full factual context (lengthy prior engagement, Speakup and Aceppe involvement, and open consultation questions), was not so defective as to be "clearly and radically" unfair under the Gunning criteria and did not require the Council to consult specifically on a discarded or single "middle way" alternative; and (ii) although parts of the officer’s report and executive summary were potentially misleading, it was reasonably open on the evidence to infer that Cabinet members gave conscientious consideration to the Aceppe analysis of consultation responses before deciding to close the Oaks Day Centre.