Consultation and how to avoid Judicial Review

In these times of austerity public bodies are having to make numerous difficult decisions relating to funding and service changes. These changes often have significant impact on individuals and as a result there is often a significant risk of challenge. Understanding recent developments in this area of the law is important to mitigate the risk of challenge

1. ESTABLISH THE AIM OF THE PROPOSED CHANGE AND BE CLEAR ABOUT THIS. If the aim is to reduce spend then be honest about this from the start.
2. DUTY TO CONSULT. Establish early on whether there is a statutory or common law duty to consult on the proposed changes.  This will assist in establishing the extent of the duty to consult.  If you are considering withdrawing a benefit then there is likely to be an obligation to consult with the beneficiaries before change.  Consultation must be undertaken at a formative stage so as to avoid any suggestion of bias or pre-determination.
3. TACKLE CONTROVERSIAL ISSUES HEAD ON. Seek out the full range of opinions and do not be afraid to highlight the controversial issues.  The more these are discussed at the consultation stage (or even before) the easier it is to demonstrate that these have been considered and taken into account.
4. ENSURE RELEVANT INFORMATION IS OBTAINED AND SHARED. Make sure that the consultees have enough information to fully understand the proposals being put forward.  Make sure that it is very clear exactly what the nature of the proposal is and why it is being put forward.  You should also include a summary of the evidential basis and assumptions made.  Are there relevant experts that can provide information and has this information been made available?
5. CLEAR CRITERIA. Be clear about how you will assess the options available and reach a decision. 
6. ALTERNATIVE OPTIONS. Currently there is a confusing array of case law which in effect provides that sometimes fairness may require consideration of realistic alternative options.  Various factors have been cited as to when this requirement may be triggered including the knowledge or expertise of the stakeholders.  However, including alternative options and why they were discarded may be the safest way forward even where the options and reasons seem obvious to you!  It is important that the consultation document is not misleading and that it does not suggest that there are no alternative options available.
7. TIME. Allow sufficient time for individuals to respond to the consultation.  You must consider public holidays and the effect that this may have on the ability of consultees to respond.  If in doubt, allow additional time.
8. CONSCIENTIOUS CONSIDERATION. It is critical that public bodies not only consider the consultation responses but can demonstrate that consideration through documentation.   This means producing a fair and balanced report on the output.  Where changes, however small, have been made as a result of the consultation then this should be highlighted.
9. PUBLIC SECTOR EQUALITY DUTY. You should ensure that there is clear documentary evidence that the PSED has been considered throughout the consultation process.  Critically, the final decision maker must have sufficiently full information before it in order to effectively discharge the duty and the fact this is considered should be documented.  Whilst it is not lawfully required, producing a properly considered Equality Impact Assessment is a good way of evidencing that due regard has been given
10. CLEAR DECISION. Be clear who is taking the decision and when it will be taken.
    

The Bevan Brittan consultation team is able to advise you from the moment you think about service change, through the consultation and decision making process.  If your decision is challenged we can act for you in defending any judicial review proceedings.