Y, R (on the application of) v The London Borough of Richmond-Upon-Thames & Anor

A consultation is unlawful only where the process is so unfair that it is clearly and radically wrong. What fairness requires depends on the statutory and factual context. A consultation may need to mention arguable alternatives where presenting a preferred option as inevitable would mislead consultees, but no universal duty requires detailed discussion of rejected options.

Judicial review of a consultation is ordinarily premature while the decision-making process remains capable of self-correction. The court should intervene before the final decision only where there is an irretrievable flaw. Where no serious issue to be tried is shown, interim relief and permission for judicial review should be refused.

Y, the mother of a disabled child receiving special educational provision, challenged the London Borough of Richmond-Upon-Thames’ consultation on future funding for special educational needs and disabilities. She alleged that the consultation was misleading because it invited views on reducing or reallocating expenditure without mentioning the possibility of supplementing the schools budget from alternative funding sources.

Y sought urgent interim relief preventing the Council from setting its schools budget pending a substantive judicial review. The issues were whether the consultation was arguably unlawful, whether the claim was premature, and whether interim relief should be granted.

1. Consultation fairness. The consultation accurately described the Council’s financial position and presented options for bringing expenditure more closely into line with government funding. It did not present fixed proposals while concealing discarded alternatives. The omission of alternative funding sources did not make the consultation misleading or unlawful.
2. The principles in R (on the application of Moseley) v Haringey LBC [2014] LGR 823 did not require a different result. That decision recognised that fairness may require reference to arguable alternatives, depending on the statutory context and the way the consultation is framed. Here, the Council had not disguised a predetermined choice or implied that no alternatives existed.
3. The applicable threshold was whether the process was so unfair as to be unlawful, involving something clearly and radically wrong. Applying the approach in R (on application of Baird) v Environment Agency and Arun DC [2011] EWHC 939, as approved in R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472, that threshold was not met.
4. Prematurity and self-correction. The Council remained aware that it could supplement the schools budget from other funding sources. The consultation and subsequent democratic budget-setting process were therefore capable of correcting any defect. Consistently with Royal Brompton, intervention before the final decision was inappropriate because there was no irretrievable flaw.
5. There was no serious issue to be tried. Interim relief preventing the Council from setting its budget was refused, permission for judicial review was refused, and the claim was dismissed. In any event, the balance of convenience did not favour the requested injunction.

First-instance judicial review and interim-relief proceedings. No prior appellate decision was stated in the judgment.