Recent cases provide useful guidance on consultation requirements in the context of budget cuts and the new equality legislation. With cuts in public spending, NHS bodies increasingly need to review services. As a result, statutory bodies are faced with reducing spending while complying with statutory duties to consult and to have regard to equality needs; this is a challenging balancing act. The recently handed down judgment of McKenna J in R (on the application of Green) v Gloucestershire CC; R (on the application of Rowe and another) v Somerset CC provides useful guidance to public bodies on consultation requirements in the context of budget cuts and the new equality legislation.
The cases concerned a challenge to the decision by the respective councils to close certain public libraries by users of local services on three grounds:
- that it was a breach of the statutory duty to provide a comprehensive and efficient library service;
- that there was a breach of the equality legislation; and/or
- the decisions were taken without adequate consultation.
McKenna J found for the councils on the first ground. The councils' statutory duty to provide the library service could not be divorced from resource issues. There was nothing unlawful in evaluating service provision in the light of available funding, subject to an adequate assessment of needs, and it was not for the court to interfere with the councils' judgments on how best to deploy their resources.
He considered the councils’ obligations to have due regard to equality needs under the Equality Act 2010 and its predecessor legislation. The question was whether a public body had carried out its duties in substance, not form, and the production of an Equality Impact Assessment (EIA) was not determinative. He found against both councils on the second ground because they did not draw the attention of the budgetary decision makers to the relevant statutory equality duties and failed to thoroughly assess the effect of the closures on those groups, such as the elderly and disabled, who would be particularly affected.
Having found for the claimants on the second ground, McKenna J did not need to consider the adequacy of the consultation process. However, following a review of the relevant authorities, he considered that both councils had carried out fair consultations.
He held that a fair consultation requires that the decision maker lets those who have a potential interest in the subject matter know in clear terms what the proposal is and why exactly it is under positive consideration, telling them enough to enable them to make an intelligent response. In particular:
- Public bodies are entitled to consult on a preferred option; they are not obliged to consult on alternative means of achieving the same objective.
- There is no requirement to provide information about the specific savings to be achieved. It is enough to set out what the proposals are and their rationale.
- The consultation must take place at a formative stage ie, before the final decision is taken. However, interim decisions may be taken prior to consultation.
- If there is no statutory consultation period, then the time allowed must be reasonable having regard to all the facts. Although Somerset Council's consultation lasted only a month, straddled New Year and Christmas and coincided with severe weather conditions, it was not unfair, particularly as there were a large number of responses anyway.
McKenna J quashed the decisions of both councils to close library services and directed them to correctly apply the equality legislation in taking any future decisions. Neither council has yet retaken the decision to close library services. Watch this space!
Meanwhile, the case is clear that limited resources cannot justify a failure to comply with statutory duties or the requirements of public law.