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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Berry, R (on the application of) v Cumbria County Council  EWHC 3144 (Admin) (07 November 2007)
Cite as:  EWHC 3144 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
(Sitting as a Judge of the High Court)
|THE QUEEN ON THE APPLICATION OF BERRY
|CUMBRIA COUNTY COUNCIL
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr Clive Sheldon appeared on behalf of the Defendant
Crown Copyright ©
"First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third ..... that adequate time must be given for consideration and response and, finally, fourth that the product of consultation must be conscientiously taken into account in finalising any statutory proposals."
Gunning was a school closure case. As Mr Justice Webster said in another case:
"In the present case in my view the legitimate expectation of consultation involves - from the point of view of parents - the expectation that they will be given a fair opportunity constructively to criticise the proposal and to express their own preferences in relationship to it."
" ..... the essence of consultation is the communication of a genuine invitation to give advice and a genuine receipt of that advice. In my view it must go without saying that to achieve consultation sufficient information must be supplied by the consulting to the consulted party to enable it to tender helpful advice. Sufficient time must be given by the consulting to the consulted party to enable it to do that and sufficient time must be available for such advice to be considered by the consulting party. 'Sufficient' in that context does not mean ample, but at least enough to enable the relevant purpose to be fulfilled. By 'helpful advice' in this context is meant sufficiently informed and considered information or advice about aspects of the form or substance of the proposals or their implications for the consulted party, being aspects material to the implementation of the proposal as to which the Secretary of State might not be fully informed or advised and as to which the party consulted might have relevant information or advice to offer."
" ..... the precise demands of consultation would vary according to the circumstances depending, for example, upon whether the obligation was statutory and absolute or implied in common fairness, and upon the nature of the assistance that might be expected from those to be consulted (in turn dependent sometimes upon their qualifications)."
"As Cumbria is one of the last authorities to introduce charging to day services, local charities recognise that it is inevitable that the people will have to contribute something at some stage."
"Arrangements are being made to consult with voluntary groups early in the New Year so that the views of all groups representing day care users are taken into account, prior to the county council making final decisions, and you will be contacted separately for that.
I will ensure that all the points you raise will be considered at the consultation meeting."
The local authority says that this is part of their twin-pronged approach. They put out the budget to general comments and consultation and were then being more focussed by putting out detailed proposals to those directly involved. Mr Stybelski's letter is no doubt some aspect of that.
"Bob Whitson gave introductions and background to the meeting that the county council members are considering charging for day care services. They had been told this was provided free. Sheila Donne gave the background of policy and raising issues that people addressed. This could not be exhaustive to consider issues - voluntary groups and organisation could be raised - and although some initial feed back could be taken today issues could also be taken to organisations and feed back could then be sent back in writing or brought up at another meeting with the group. Notes would be taken of the meeting and circulated."
"This budget would still allow for some £9 million to be allocated to meet the payments. It would not require increases in the cost of Meals on Wheels, day care or home care charges or the abolition of ..... charges."
There is also this reference:
"The desire to safeguard services ..... support from vulnerable groups where concerns have been expressed about the charges for care services and the reduction of the payment of grants."
There appears to have been no actual discussion about the day care except explicitly in the debate about the alternative budget.
"Whilst members were aware of the reason ..... the outcome of the detailed discussion did not form part of the budget papers before council which did not include some of the consultation responses or comments on them."
"A group of invitees were there ..... they could reflect the views of those who would be subject to charging, these groups representing providers, carers, as well as supporters, users of day care centre facilities throughout the area of the county."
It is said on behalf of the claimant that was a very small sample, when one sees the number of people who actually turned up to object, of the people who were circulated for the purposes of another exercise later in the year. Miss Stannard also says that in the period up to the meeting the council received correspondence expressing views about the proposed introduction of day care charges and she had been discussing this with councillors. There is no doubt that that is correct. But of course the correspondence is not available. One does not see in the records of the meeting itself any reliable indicator that consultation had taken place and been drawn to the attention of members.
"The third sector can be one route to user and community views. If organisations are to be able to accurately reflect these views they need time to consult with those they represent.
• Partners will work together to draw up plans.
• A minimum consultation period of 12 weeks will be given when a major service change is proposed, in line with the Cabinet Office Code of Practice on Consultation.
If an organisation cannot do something that is set out in this compact they will explain why, and how they plan to comply with this compact in future.
• Organisations will promote and raise awareness of the compact.
• Organisations will ensure their staff, volunteers and members are aware of the compact through appropriate publicity and training."
That compact had been introduced not long before the events which are the subject of this case.
The county council considered day care charges again in a September meeting. Some providers felt the county council did not fully consider their views on day care charges. Not enough people's views were obtained. Mr Pearson, councillor, has asked me to write to you to ask if you have views on day care charges which have not been heard ..... put this in writing to him before August 2007."
Shortly after there was a letter from the solicitors of the claimant setting out what they felt were the defects in consultation, claiming that the time for consultation was insufficient.
"Day care members remain confused about ..... the financial assessment process. I am enclosing a petition from members ..... including 66 signatures."
There is a detailed statement of the observations. Sale (?) sent out a letter accompanied by a petition:
"We, the undersigned, are members ..... we provide social day care for the people ..... we are writing to express our concerns about the fact that the county council is phasing in day charges [and so on]
out of the blue."
"However I have been asked to stress I do not view this ..... as a consultation."
There is a reference to a discussion carried out by Age Concern North-West Cumbria management team, day care staff and finance:
"A letter was sent to Mrs Stannard by Sonia Mangan on 7 August making comments about the introduction of charges, again in some detail, making able and succinct points."
That letter, in turn, is responded to by Mrs Stannard on 13 August in a detailed and closely reasoned letter. There are other communications to similar effect.
"If Age Concern had been in a position to consult properly with users and ..... sufficient time to collate and present information to the council, the details it wanted to ensure the following ..... "
"Numbers who would be liable, who would refuse to pay and therefore stop attending and reduce the attendance;
Numbers that would refuse to be means tested and therefore stop attending;
Numbers who would refuse to say how often they went in and for how long. Many go for a whole day at present ..... and many only attend one session ie half-a-day impacting on reliability of services and provision;
Impact on income and expenditure of those who are liable;
Concerns for example about people not paying for the heating so they can still attend day care;
The impact on carers of people not attending ie no respite;
Lack of any alternative social interaction for those who stop attending;
Lack of availability of home care due to existing pressures on limited services. The workforce in Cumbria is insufficient to provide enough home care;
What this will mean if people start going .... some might be able but still have limited means, charging £60 a week,"
and so on, and there are others.
"In the present case, in my view, the legitimate expectation of consultation evolves from the point of view of expectation ..... the ..... opportunity constructively to criticise the proposal and to express their own preferences in relation to it."