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“Age of austerity” - what is a public body’s duty to consult?
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“Age of austerity” - what is a public body’s duty to consult?

A recent Court of Appeal case provides useful guidance on the law concerning a public body's duty to consult, especially in the "Age of Austerity".

In R (on the application of Robson) v. Salford City Council [2015] EWCA Civ 6, Salford Council decided to close its Passenger Transport Unit (PTU), which provided transport for disabled adults to and from their day care centres.  This decision was appealed. One of the issues on appeal was whether a lawful consultation had been carried out by the Council prior to implementing its decision.


The consultation regarding the closure of PTU comprised part of a broader consultation on changes proposed to services provided to vulnerable adults.  The Council's consultation on its proposals involved the distribution of an information booklet and accompanying questionnaire.

The booklet included the following information/explanations:

  • The Council's budget had been cut
  • The Council therefore had to prioritise the care it could offer
  • It therefore needed to encourage greater independence
  • It would assess the various options which could meet the transport needs of people using the PTU services

The booklet did not explicitly state that one of the proposals was a withdrawal of the PTU services.  It only went as far as saying that the proposal was to assess all adults who used the PTU services to see if alternative options could be used. 


This shortcoming in the booklet was not fatal:

  • The consultation had focused sufficiently on outcomes for the service users (i.e. as to whether alternative arrangements could be made regarding transport for the PTU users) as opposed to withdrawal of the specific service (the PTU).
  • The continued existence of PTU was not important to its users - what was important was the continued provision of transport by other means.
  • It was implicit in the documentation that the PTU service would be withdrawn
  • It would thus have been too 'formalistic' to hold the consultation unlawful 

Counsel for the appellant sought to rely on the earlier case of Moseley to establish that the consultation documentation was 'positively misleading'. In Mosely, the local authority in question conveyed a positively misleading impression that the other options aside from its proposal were irrelevant. A distinction was however made between where there was a statutory duty to consult (as in Mosely) and where there was no such duty.

However, the Judge did accept that there was a certain point to the argument of unlawful consultation raised by Counsel for the appellants, stating that:

"The consultation material presented an incomplete picture by concentrating on the proposed assessment of users of the PTU services to see if alternative transport options could be used, without a clear statement that it proposed to close PTU itself"

The Council's internal documentation prior to publication of the booklet was also criticised for being unclear as it also did not specifically refer to the closure of PTU.

It is therefore arguable the Council was not entirely blameless, and indeed the judge observed that the appellant's contention that the consultation documentation was misleading had 'considerable attraction' to it.


This case may provide some comfort for local authorities who might be worried about the onerousness of obligations imposed on them by the duty to consult. Nevertheless, it does reiterate several important points:

  • A public consultation must be as forthright and as open as possible to reduce the risk of potential litigation. 
  • It is not a perfunctory 'tick-box' exercise
  • A clear internal audit trail should be maintained
  • Consultation documentation such as booklets, flyers and websites should be couched in unambiguous terms


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