The Court of Appeal has emphasised that procedural fairness remains central where readily identifiable and potentially vulnerable service users are affected by proposed changes to public services. It is a clear reminder to local authorities and other public bodies that proper procedural process remains central to lawful decision-making and presumptions should be avoided.
The case provides a clear warning that consultation obligations can arise through common law duties of fairness, particularly where:
a small and readily identifiable group will be directly affected by a proposed decision;
vulnerable service users are involved;
service users have a legitimate expectation that they will be consulted;
The proposed change concerns the closure or significant alteration of services central to people's daily lives.
Authorities embarking on property disposals or service reviews should therefore ensure that public law considerations are built into project planning from the outset and are adhered to.
In the Bromley case (BUJ v London Borough of Bromley) the Court of Appeal allowed an appeal against a council's decision to close the Poverest Centre, an adult education facility used by learners with learning difficulties and disabilities (LLDD). The ruling means that Bromley Council's decision will now be quashed and the authority must undertake consultation with affected users and their carers before deciding whether to proceed with closure.
Initially, a judicial review challenge (heard by the High Court) against the proposed closure (on the basis of a lack of consultation) failed. While in that instance the judge accepted that service users had a legitimate expectation that they would be consulted before closure, he concluded that the outcome would likely have been the same even if consultation had taken place. On that basis, the claim was dismissed. The claimant appealed.
In the appeal the Court overturned the earlier decision. It held that Bromley Council was under a common law duty to consult the LLDD learners and their carers before any decision to close the centre was taken. The affected group was small, readily identifiable and directly impacted by the proposal.
In reaching its conclusion, the Court noted that the 99 LLDD users and their carers formed a distinct group whose interests were closely tied to the future of the centre. Evidence before the Court showed that for some users the Poverest Centre was a central part of their lives outside the home.
The Court concluded that these individuals had a legitimate expectation that they would be consulted before a decision was made and that it would be irrational to close the centre without giving them the opportunity to make representations.
As a result, the closure decision was quashed and the council must now undertake consultation before reaching any further decision regarding the centre's future.
The judgment reminds us that consultation is not a procedural formality. Where public authorities are proposing changes that have a profound impact on identifiable groups, particularly vulnerable service users, Courts will scrutinise closely whether those affected have been given a meaningful opportunity to be heard before decisions are taken.
The decision is also notable because the Court of Appeal was prepared to intervene despite the High Court's finding that consultation may not ultimately have altered the outcome.
This judgment demonstrates how public law duties remain critical even where councils are operating in an extremely challenging financial environment. The case underlines the need to consider consultation obligations at an early stage and not as an afterthought once decisions have effectively been made.
