|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> HL, R (On the Application Of) v Secretary of State for Health And Social Care  EWHC 866 (Admin) (18 April 2023)
Cite as:  EWHC 866 (Admin)
[New search] [Context] [View without highlighting] [Printable PDF version] [Help]
KING'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE KING (ON THE APPLICATION OF HL)
|- and -
|SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE
Leon Glenister (instructed by GLD) for the Defendant
Hearing date: 24 October 2022
Crown Copyright ©
Mr Justice Julian Knowles:
"(1) Regulations may make provision for appeals against decisions taken by a local authority in the exercise of functions under this Part in respect of an individual (including decisions taken before the coming into force of the first regulations made under this subsection).
(2) The regulations may in particular make provision about -
(a) who may (and may not) bring an appeal;
(b) grounds on which an appeal may be brought;
(c) pre-conditions for bringing an appeal;
(d) how an appeal is to be brought and dealt with (including time limits);
(e) who is to consider an appeal;
(f) matters to be taken into account (and disregarded) by the person or body considering an appeal;
(g) powers of the person or body deciding an appeal;
(h) what action is to be taken by a local authority as a result of an appeal decision;
(i) providing information about the right to bring an appeal, appeal procedures and other sources of information and advice;
(j) representation and support for an individual bringing or otherwise involved in an appeal;
(k) investigations into things done or not done by a person or body with power to consider an appeal.
(3) Provision about pre-conditions for bringing an appeal may require specified steps to have been taken before an appeal is brought.
(4) Provision about how an appeal is to be dealt with may include provision for -
(a) the appeal to be treated as, or as part of, an appeal brought or complaint made under another procedure;
(b) the appeal to be considered with any such appeal or complaint.
(5) Provision about who is to consider an appeal may include provision—
(a) establishing, or requiring or permitting the establishment of, a panel or other body to consider an appeal;
(b) requiring an appeal to be considered by, or by persons who include, persons with a specified description of expertise or experience.
(6) Provision about representation and support for an individual may include provision applying any provision of or made under section 67, with or without modifications.
(7) The regulations may make provision for -
(a) an appeal brought or complaint made under another procedure to be treated as, or as part of, an appeal brought under the regulations;
(b) an appeal brought or complaint made under another procedure to be considered with an appeal brought under the regulations;
(c) matters raised in an appeal brought under the regulations to be taken into account by the person or body considering an appeal brought or complaint made under another procedure.
(8) The regulations may include provision conferring functions on a person or body established by or under an Act (including an Act passed after the passing of this Act); for that purpose, the regulations may amend, repeal, or revoke an enactment, or provide for an enactment to apply with specified modifications.
(9) Regulations may make provision, in relation to a case where an appeal is brought under regulations under subsection (1) -
(a) for any provision of this Part to apply, for a specified period, as if a decision ("the interim decision") differing from the decision appealed against had been made;
(b) as to what the terms of the interim decision are, or as to how and by whom they are to be determined;
(c) for financial adjustments to be made following a decision on the appeal.
(10) The period specified under subsection (9)(a) may not begin earlier than the date on which the decision appealed against was made, or end later than the date on which the decision on the appeal takes effect."
a. Ground 1: the Defendant breached his duty to consult prior to making his decision in December 2021 to 'shelve' the implementation of an independent appeals system. This duty arose at common law.
b. Ground 2: the failure to implement an appeals system poses a real risk of individuals being unable to have effective access to a legal remedy to resolve social care disputes and impairs their right of access to justice.
c. Ground 3: the failure also amounts to an interference with the procedural guarantees to an effective remedy to which the Claimant is entitled under Article 8 of the European Convention on Human Rights (ECHR).
"It is at least arguable, I put it no higher than that, that in the context of the initial consultation and subsequent commitment to the implementation of an appeal system, the legitimate scrutiny of the Court is thus engaged. I am less enthusiastic about the standalone arguments relating to access to justice and Article 8 procedural rights but consider that it would be artificial to divorce these considerations from the scope of the review."
The Claimant's factual background
"8. The combination of my own disabilities, their impact on me physically and the demands of caring for my son on account of his disabilities make it exceedingly challenging to care for my son. I cannot perform many of the tasks that parents generally do for any child, such as supervising his bathing.
9. I have limited access to support from family members to help with parents being elderly and with their own health issues. Therefore I have had to rely heavily on social care support – both adult services and children's services. My son receives a package of social care support from Children's Services under s 17 Children Act and I receive a package of adult social care, under the Care Act 2014. Without this support, we simply could not manage and, to be blunt, my son would have to be taken into care."
"13. On 26 July 2019, I made a formal written complaint about the reduction in hours to an Adult Social Services Manager, explaining how the decision had badly affected me and asking for Adult Social Services and Children's Services to work together to properly assess and meet the family's needs. I was told that it would be two months before they can respond, and that will be by 25 September 2019. In the meantime, the decision to cut my package would take effect and I had to struggle on with a care package that was reduced by half.
14. I didn't then get a reply by 25 September 2019 to my complaint. I looked into getting a solicitor because I didn't have the energy or the know-how to take the issue any further. I had an advocate who sent me a list of firms doing community care cases. It was really difficult to find solicitors to take on my case. A lot of solicitors said that they didn't take 'those types of cases' (challenging cuts to care packages) even though they were community care solicitors. Others said they didn't have any availability."
The Claimant's other evidence
"20. The Claimant's experience shows how difficult it is to resolve a fundamental dispute about adult social care effectively, quickly and fairly through the existing routes of redress. The evidence from the witnesses and contained in the 2011 Law Commission report and 2013 Joint Committee of Parliament report, make it apparent that the Claimant's experience is not an aberration."
"12. The experience of the Claimant, HL, as described in her witness statement and the documents attached to that statement, is in my experience fairly typical of a Care Act case. She is herself disabled but is also a parent carer to a disabled child, which makes care planning all the more complex. But it is my experience that there is no straight forward social care case. Most clients have one or more factors that complicate their ability to access services, such as immigration issues meaning that they are destitute as well as disabled; a history of mental health admissions which may mean that they receive services under s 117 Mental Health Act as well as under the Care Act, housing problems which may mean that they need Occupational Therapy assessments or disabled facilities grants or re-housing as well as services under the Care Act 2014; mental capacity issues which means we have to consider whether there are best interests decisions to be made; or delayed discharge from hospital.
13. HL's witness statement sets out the long and frustrating process of trying to resolve her dispute with the local authority, [County Council], about the care package she had been awarded. The length of this dispute, the amount of correspondence between her solicitor (me) and the local authority's solicitor including pre-action protocol letters before claim and the number of assessments/reviews are unfortunately, also very typical for such cases. I have summarised her case in a timeline exhibited to my statement …"
"40. Moreover, the Administrative Court, through judicial review, is limited in the remedies that it can give to a successful claimant. The most that can be given is a quashing of the previous assessment, review or decision not to act, and an order for the local authority to take a new decision. The court is not in a position to resolve disputes over the nature of the disability or level of needs where there is a dispute of evidence on those issues. Some of the disputes that clients seek advice on are matters that are very significant in their lives but do not immediately raise legal issues, such as to have the continence pads changed when their pads are wet or soiled or to eat fresh food rather than food that has been cooked by a carer several days earlier."
"Mr CC is 21 years old and has an acquired brain injury as a result of being knocked over by a car when he was a child. He had an appropriate package of social care support through his Education Health Care Plan until age 19, when he disengaged from further education. He has received no social care support for the past two years, because there is a dispute about the amount of support that he requires. The LA assessment indicates that he meets only four of the ten Care Act eligibility outcomes and he requires 30 hours support per week. Those representing Mr CC say he meets nine of the ten Care Act eligibility outcomes and requires 84 hours support per week. The difference in analysis is partly attributable to Mr CC's his brain injury: he lacks insight to his needs and unreliably reports that he can do things independently when he cannot. For example he cannot go outdoors without supervision, because he has no road safety awareness at all, and the nature of his brain injury prevents him from learning simple safety steps. The impasse between the LA and those representing Mr CC has continued for almost two years with no outcome. I was instructed at the end of January 2021 and am negotiating with the LA, who have now agreed to put Direct Payments in place and backdate them, pending a further assessment of Mr CC's needs. The Care Act assessments to date are evidently flawed and I anticipate that we will secure more than 30 hours support, but less than 84 hours support per week."
Relevant policy and legal context in more detail
The Care Act 2014
Existing routes for challenging adult social care decisions
Section 72 of the CA 2014 and its history
Joint Committee of Parliament Recommendation 2013
Public consultation and amendments to the Care Bill 2013-2014
"[I]t is important that individuals … are able to challenge decisions without having to resort to judicial review. Accordingly, we held a wide-ranging consultation during the second half of last year to seek opinions on how best we could ensure that. Following that consultation, we recognised the need for change in this area, and I have accordingly tabled a new clause that will give us the scope to develop detailed proposals for an appeals system, along with stakeholders, keeping to the spirit of co-production that has characterised our work on other areas of the Bill… [W]e will consult further… later this year… [T]he new clause demonstrates our recognition of the need for change and our determination to ensure that there is a clear, flexible and independent appeals system."
The decision to implement an appeals system
(i) Public consultation 2015
"If you think the council's decision about your care is unfair, you can ask them to look at things again. At the moment you: make a complaint to your local council; ask the Local Government Ombudsman (LGO) to look at your complaint if you think the council has made a mistake; go to court. This can take a long time and is not very independent (from the council). We need a system that: is fair; treats everyone equally; is independent (not part of the council); is easy for people to use and councils to run.
(ii) The 2016 decision to implement an appeal system
a. the Care Act Factsheet 13: Appeals Policy Proposal (updated in April 2016), which summarised a three-stage appeal systems proposal, stating that it 'has been designed with the aim of resolving disputes in a less costly and time consuming manner compared with legal routes of challenging decisions.' It stated:
"This factsheet describes how our appeals policy proposals set out the process of appealing certain decisions taken by local authorities in relation to an individual under Part 1 of the Care Act 2014.
Why have an appeals system ?
The lack of a formalised appeal structure within care and support was highlighted in consultation responses as well as in debates when the Care Act 2014 progressed through Parliament.
The government acted and amended the Care Act to include powers to introduce an appeals system under which decisions taken by a local authority under Part 1 of the Care Act 2014 might be challenged.
Care and Support decisions have a large impact on people's quality of life. It is therefore important that where people feel an incorrect decision may have been made in relation to their care and support they have an effective means to have the decision reviewed.
The government plans to implement the appeals policy from April 2020. During the interim period, we will develop the policy to respond to the key issues identified during the consultation held in 2015. This will also allow local authorities sufficient time to prepare for implementation and appoint the independent reviewers."
b. A written parliamentary answer (PQ 32039 24 March 2016).
(iii) More recent developments
'… still on the horizon, but this is best placed as an overall reform of social care systems… We have therefore delayed the implementation of this appeal system until we can make it part of a larger commitment to reforming social care.' (Vol 806, 3.01pm)
(iv) White Paper, December 2021
"The Care Act 2014 includes a provision to introduce a new system to allow the public to appeal certain social care decisions made by local authorities. While we do not intend to introduce such a system immediately, we are keeping it under ongoing review as the new reforms are implemented and will continue to gather evidence to inform future thinking."
The Defendant's evidence
"9. As noted by the Claimant, no document was published which collated the consultation responses. The Department collated and considered the responses internally. In relation to the appeal system, there were mixed views in the responses to the consultation. There was broadly an even split between in favour, against and no response. Many representative groups were in favour of an appeal system, but other responses were not in favour and there was no consensus."
"15. Since the consultation, and to the present day, any potential appeals system has been kept under review as part of the wider social care reforms, including the cap on care costs. The policy position in 2016 was that the cap on care costs, as well as the appeals system, were planned for April 2020. This was set out in an answer the Government provided to a question in relation to the appeals system on 21 March 2016 appended at [TS/8]."
"The Department plans to introduce the appeals system for adult social care in April 2020, alongside of the implementation of the cap on care costs."
"… At that time the government policy was that the wider plans in respect of social care would be considered and set out in a Green Paper. On 7 December 2017, then Under Secretary of State for Health Jackie Doyle-Price made an oral statement to the House of Commons, setting out that the April 2020 timeframe would be delayed for consideration of more of the adult care system:
'To allow for fuller engagement and the development of the approach, and so that reforms to the care system and how it is paid for are considered in the round, we will not take forward the previous Government's plans to implement a cap on care costs in 2020. Further details of the Government's plans will be set out after we have consulted on the options. The Green Paper will focus primarily on reform of care for older people, but will consider elements of the adult care system that are common to all recipients of social care.'".
"28. In February 2021, the Department for Health and Social care published a White Paper titled 'Integration and Innovation: working together to improve health and social care for all'. This set out legislative proposals for a Health and Social Care Bill with a number of proposals for adult social care. Whilst none were specifically on an appeals system, it did for example include a proposed power for the Secretary of State to intervene when a local authority was failing to meet its [adult social care] duties.
29. Of relevance to the present case, it referred to the wider social care reform (which included the appeals system) to be covered by separate proposals later in the year (Ex TS/14):
'2.7 We also recognise that the social care system needs reform: this remains a manifesto commitment [at the 2019 General Election] and the government intends to bring forward separate proposals on social care reform later this year. No one piece of legislation can fix all the challenges facing health and social care – nor should it try – but it will play an important role in meeting the longer-term health and social care challenges we face as a society
4.4. …We have committed to bringing forward proposals this year but, in the meantime, our legislative proposals will embed rapid improvements made to the system as it has adapted to challenges arising from Covid-19.
30. In relation to this wider reform, the Government was clear it was looking at social care reform in its entirety at this stage …"
"Since March 2021, the department has been engaging extensively to shape the government's vision and priorities for adult social care system reform. We have worked with over 200 organisations to shape the content of People at the Heart of Care, including representatives from: local government, providers, provider representative bodies, workforce representatives, trade unions, charities, think-tanks, professional bodies, lived experience representative groups and those with lived experience of delivering unpaid care and drawing on care and support."
"36. This engagement gave an opportunity for a range of stakeholders to set out the main issues which they considered required reform and central government intervention. A central purpose of the exercise was to establish prioritisation of reform. It was open to stakeholders to raise dispute resolution as an issue which should be prioritised. On a few occasions, a dispute resolution procedure was raised (for example through the Health and Wellbeing Alliance Social Sub-Group, two responses included reference to having better complaints procedures). However, overall it was not a significant feature of reform priority."
"37. Taking account of this extensive engagement exercise, the Secretary of State had to make policy decisions about which areas to prioritise early spending on. The engagement exercise was used to identify common themes and priorities. The most common priorities for reform cited during this engagement included: pressures recruiting and retaining the social care workforce; the need for better integration between health and care services; the recognition of the adult social care sector, the importance of people living independently in their own home or care setting that suits their needs; and the need for digital innovation across the sector.
38. This informed the prioritisation within the immediate reform package with at least £500m for the social care workforce, at least £300m in housing, and at least £150m in technology and digitisation. Separately, the Secretary of State published an integration white paper setting out focus to enable successful integration including the sharing of health records, accelerating progress to align and pool funding, and creating a single accountable person responsible for delivering shared outcomes at a local level.
39. The appeals system was initially considered as part of the plans for the immediate reform package, however in light of the amount of funding available the Secretary of State prioritised other areas. In reaching a decision on prioritisation, he considered specifically the provisions in the CA 2014 in relation to an appeals system. However, the Secretary of State did not include it in the immediate reform package because, in the context of tight funding envelope, it was not considered as higher reform priority as other areas."
"A key component of better information includes a strong feedback culture and we recognise the importance of this in adult social care. This culture should enable organisations to continuously improve and ensure people have effective routes of redress if they are unhappy with the care or support they receive. The current system requires local authorities and social care providers to have their own complaints procedures.
If someone is not satisfied with the way a care provider or local authority has dealt with a complaint, they may escalate it to the Local Government and Social Care Ombudsman.
The Care Act 2014 includes a provision to introduce a new system to allow the public to appeal certain social care decisions made by local authorities. While we do not intend to introduce such a system immediately, we are keeping it under ongoing review as the new reforms are implemented and will continue to gather evidence to inform future thinking."
"41. The Secretary of State determined to keep the appeal system under ongoing review as the other reforms were implemented, and to continue to gather evidence to inform future thinking. This made sense for a number of reasons which I will now explain."
"45. On 4 March 2022, the Secretary of State launched a consultation 'Operational guidance to implement a lifetime cap on care costs' ('the 2022 Consultation'). Written submissions were accepted until 1 April 2022. This consultation included a specific section and question on appeals (this document was appended to the summary grounds of resistance):
'Following the implementation of the Act there has not been any strong evidence to suggest that existing local authority dispute resolution processes are ineffective or how they might best be improved. For this reason, we have no immediate plans to introduce a new appeals system, but we are keeping the implementation of such a system under ongoing review while we gather evidence of any challenges within existing local authority dispute resolution processes for local authorities or those who use their services.
Across the new chapters, the draft guidance advises that any disputes arising from decisions related to these reforms should be handled by local authority complaints systems.
Do you agree or disagree that local authority complaints systems effectively resolve disputes about care and support?
Neither agree or disagree
Please explain your answer"
46. This consultation was launched on the gov.uk website, and was publicly available. On the day the consultation was launched, Department officials emailed key stakeholders to inform them the consultation had launched. These were representatives of Age UK, Alzheimers Society, particular local authorities, Care England, Carers UK, Local Government Association, Mencap, National Care Association, National Care Forum, UK Homecare Association, Skills for Care, Care Quality Commission, Kings Fund, Social Care Institute for Excellence, Think Local Act Personal and Voluntary Organisations Disability Group."
"52. Drawing the facts in this witness statement together, I make the following points:
a. It was in 2016, Government policy that the implementation of a cap of care costs and an appeal system would be introduced in April 2020, and this was set out in writing. However, in or around 2017 there was a change of policy to consider wider social care reform together and the appeals system was then going to be considered as part of that. The matter then fell for the Government in terms of deciding which parts of social care reform should be prioritised.
b. In determining the prioritisation, the Secretary of State took account of views expressed during an extensive engagement programme, including with service users.
c. There has been no decision by the Secretary of State that no appeal system is to be implemented. Rather, and as set out in the White Paper, following the extensive engagement programme, the Secretary of State prioritised other areas in the first phase of adult social care reforms. It will be kept under review and up to date evidence will continue to be gathered."
The Claimant's submissions
The Defendant's submissions
"36. In R (Plantagenet Alliance Ltd) v The Secretary of State for Justice and others  EWHC 1662 Admin, the Divisional Court, at paragraph 98 of its judgment, summarised the general principles concerning the duty to consult as derived from the authorities. The Divisional Court noted, first, that there is no general duty to consult at common law and that the government of the country would grind to a halt if every decision-maker were required in every case to consult everyone who might be affected by his decision.
37. I would add here that, in the case of a democratically-elected public authority, such as the defendant, the courts will be particularly cautious about inferring that a duty to consult has arisen. As Laws LJ held in R (Bhatt Murphy) and others v the Independent Assessor  EWCA Civ 755 at paragraph 41, "Public authorities typically, and central government par excellence, enjoy wide discretions which it is their duty to exercise in the public interest… Often they must balance different, indeed opposing interests across a wide spectrum. Generally, they must be the masters of procedure as well as substance…".
38. As held in Plantagenet Alliance, a duty to consult may arise where there has been an established practice of consultation or where, in exceptional cases, a failure to consult would lead to conspicuous unfairness. Here again Bhatt Murphy is relevant. At paragraph 49, Laws LJ held that where there has been no assurance either of consultation or as to the continuation of the policy in question, 'there will generally be nothing in the case save a decision by the authority in question to effect a change in its approach to one or more of its functions. And generally, there can be no objection to that, for it involves no abuse of power'.
39. Even where, in a rare case, a common law duty to consult arises, the public authority will have considerable leeway to decide the nature of the consultation exercise. At paragraph 62 of his judgment in R (Greenpeace Ltd) v Secretary of State for Trade and Industry  Env LR 29, Sullivan J said:-
'A consultation exercise which is flawed in one, or even in a number of respects, is not necessarily so procedurally unfair as to be unlawful. With the benefit of hindsight it will almost invariably be possible to suggest ways in which a consultation exercise might have been improved upon. This is most emphatically not the test. It must also be recognised that a decision-maker will usually have a broad discretion as to how a consultation exercise should be carried out."
40. At paragraph 63, Sullivan J concluded that a finding that a consultation exercise was unlawful by reason of unfairness 'will be based upon a finding by the court, not merely that something went wrong, but that something went 'clearly and radically' wrong'.
41. In deciding whether a exercise has gone 'clearly and radically wrong', the court will have regard to what are referred to as the 'Gunning' or 'Sedley' criteria. In R v Brent London Borough Council ex parte Gunning (1985) 84 LGR 168, Hodgson J adopted the submissions of Mr Sedley QC (as he then was) concerning the basic requirements for a consultation process to have a sensible content. First, that consultation must be at a time when proposals are still at a formative stage. Second, the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third, adequate time must be given for consideration and response. Finally, the product of the consultaiton must be conscientiously taken into account in finalising any statutory proposals.
42. The Gunning/Sedley criteria were approved in the judgment of Lord Wilson (with whom Lord Kerr agreed). In R (Moseley) v London Borough of Haringey  UKSC 56, at paragraph 25. The criteria had earlier been approved by the Court of Appeal in R v North and East Devon Health Authority, ex parte Coughlan  QB 213 at paragraph 108.
43. Recently, in R (Article 39) v Secretary of State for Education  PTSR 696, Baker LJ, citing ex parte Coughlan, held at paragraph 78 of the judgments, that if as a matter of fact, a public authority consults albeit informally and over a limited period, then, whether or not consultation is a legal requirement, 'if it is embarked on it must be carried out properly and fairly'.
44. In R (L) and another v Warwickshire County Council and another  EWHC 203 (Admin), Mostyn J held, at paragraph 17 of his judgment, that an action founded on an alleged breach of a promise to consult must demonstrate 'not just... a broken promise but there must also be shown to be unfairness amounting to an abuse of power for the public authority not to be held to it'. As regards an action founded on an alleged established practice of consultation the practice 'must be clear, unequivocal and unconditional and, again, there must also be shown to be unfairness amounting to an abuse of power'. As regards the exceptional case where a failure to consult would lead to conspicuous unfairness, 'the unfairness must be of a very high level'. Mostyn J added that 'where the decision not to consult has been made by democratically elected representative, the court should be very slow to intervene, for obvious constitutional reasons.'
45. In R (Heathrow Hub Ltd and another) v Secretary of State for Transport  EWCA Civ 213, the Court of Appeal held that, whilst a promise of consultation need not be express, there must be a practice 'which is impliedly tantamount to such a promise. That practice must still give rise to a representation which is clear, unambiguous and devoid of any relevant qualification': paragraph 69.
46. Newey LJ, giving the judgment of the Court of Appeal in R (MP) v Secretary of State for Health and Social Care  EWCA Civ 1634, held, at paragraph 35, that where 'a public body chooses to consult on a set of proposals, it has to conduct the consultation in respect of those proposals properly.' (original emphasis). So far as concerns the exceptional case in which fairness demands that a consultation be undertaken, Newey LJ emphasised the requirement of conspicuousness in approaching the test of unfairness. He also held, at paragraph 36, that "the fact that a proposal might be expected to excite interest and comment" did not provide a reliable answer to whether the proposal needed to be the subject of consultation in order to avoid conspicuous unfairness. Without more, a proposal of that character did not 'imply that there is a duty to consult on it'.
47. In R (Binder and others) v Secretary of State for Work and Pensions  EWHC 105 (Admin), Griffiths J held that the question of whether a consultation was, in fact, held, such as to attract the Gunning/Sedley criteria, was one of substance rather than form, based on what was said and done at the time: paragraph 60. In holding that, in the case before him, such a consultation had been voluntarily embarked upon and that a particular survey was at the heart of that consultation, Griffiths J had regard to a press release issued by the defendant, in which it was said that the defendant's strategy would build 'on insights from the lived experience of disabled people' and that the defendant wished to ensure that there was 'enough time to get this right and undertake a full and appropriate programme of stakeholder engagements. People's views and insights would be crucial". In the case before him, Griffiths J found that the Gunning/Sedley criteria had not been complied with."
"(1) There is no general duty to consult at common law. The government of the country would grind to a halt if every decision-maker were required in every case to consult everyone who might be affected by his decision. Harrow Community Support Limited) v. The Secretary of State for Defence  EWHC 1921 (Admin) at paragraph , per Haddon-Cave J).
(2) There are four main circumstances where a duty to consult may arise. First, where there is a statutory duty to consult. Second, where there has been a promise to consult. Third, where there has been an established practice of consultation. Fourth, where, in exceptional cases, a failure to consult would lead to conspicuous unfairness. Absent these factors, there will be no obligation on a public body to consult (R (Cheshire East Borough Council) v. Secretary of State for Environment, Food and Rural Affairs  EWHC 1975 (Admin) at paragraphs [68-82], especially at ).
(3) The common law will be slow to require a public body to engage in consultation where there has been no assurance, either of consultation (procedural expectation), or as to the continuance of a policy to consult (substantive expectation) ((R Bhatt Murphy) v Independent Assessor  EWCA Civ 755, at paragraphs  and , per Laws LJ).
(4) A duty to consult, i.e. in relation to measures which may adversely affect an identified interest group or sector of society, is not open-ended. The duty must have defined limits which hold good for all such measures (R (BAPIO Ltd) v Secretary of State for the Home Department  EWCA Civ 1139 at paragraphs -, per Sedley LJ).
(5) The common law will not require consultation as a condition of the exercise of a statutory function where a duty to consult would require a specificity which the courts cannot furnish without assuming the role of a legislator (R (BAPIO Ltd) (supra) at paragraph , per Sedley LJ).
(6) The courts should not add a burden of consultation which the democratically elected body decided not to impose (R (London Borough of Hillingdon) v. The Lord Chancellor  EWHC 2683 (Admin)).
(7) The common law will, however, supply the omissions of the legislature by importing common law principles of fairness, good faith and consultation where it is necessary to do, e.g. in sparse Victorian statutes (Board of Education v Rice  AC 179, at page 182, per Lord Loreburn LC) (see further above).
(8) Where a public authority charged with a duty of making a decision promises to follow a certain procedure before reaching that decision, good administration requires that it should be bound by its undertaking as to procedure provided that this does not conflict with the authority's statutory duty (Attorney-General for Hong Kong v Ng Yuen Shiu  AC 629, especially at page 638 G).
(9) The doctrine of legitimate expectation does not embrace expectations arising (merely) from the scale or context of particular decisions, since otherwise the duty of consultation would be entirely open-ended and no public authority could tell with any confidence in which circumstances a duty of consultation was to be cast upon them (In Re Westminster City Council  AC 668, HL, at 692, per Lord Bridge).
(10) A legitimate expectation may be created by an express representation that there will be consultation (R (Nadarajah) v Secretary of State for the Home Department  EWCA 1768 Civ), or a practice of the requisite clarity, unequivocality and unconditionality (R (Davies) v HMRC  1 WLR 2625 at paragraphs  and , per Lord Wilson).
(11) Even where a requisite legitimate expectation is created, it must further be shown that there would be unfairness amounting to an abuse of power for the public authority not to be held to its promise (R (Coughlan) v. North and East Devon Health Authority  1 QB 213 at paragraph  per Lord Woolf MR)."
"53. The correct position appears to me to be as follows:
(i) An express promise, representation or assurance needs to be 'clear, unambiguous and devoid of relevant qualification' to give rise to any legitimate expectation, whether substantive or procedural;
(ii) A practice must be tantamount to such a promise if it is to found any legitimate expectation. It may be, as Sedley LJ said in BAPIO, that a practice does not have to be entirely unbroken, but it does have to be so consistent as to imply clearly, unambiguously and without relevant qualification that it will be followed in the future."
a. Mere fairness 'cannot of itself … act as a freestanding touchstone for when consultation on a proposal is necessary" and "is not…enough to found a duty to consult on its own': MP, . It follows that even if there is 'unfairness' in not consulting, that is not sufficient to require consultation and there needs to be more than that.
b. There is also not a freestanding principle of 'exceptionality' as to facts which requires consultation: Plantagenet Alliance, :
"154. Mr Clarke argued that a duty to consult arose because of the unique and exceptional nature of this case. He submitted that in the annals of the law and archaeology, the disinterring of the remains of a long lost King of England is almost certainly never to be repeated. Whilst this may well be true, it does not help the analysis. There may be other equally 'unique' circumstances or discoveries in other contexts which could rise to similar submissions. The law must, however, proceed on a principled basis. The fact that "fairness" may be essentially an "intuitive" judgment (c.f. Doody, supra), does not mean that it should not be principled. The principle here can only be some sort of a free-standing principle of 'exceptionality', i.e. that a duty to consult arises in a certain category of as yet undefined but exceptional cases. We do not think that this is a sound basis for developing the law. The difficulty in defining the category or nature of the 'exceptionality' required demonstrates the paucity of this approach. There may be many different circumstances in different fields which could equally be termed 'exceptional'. We agree with Mr Eadie QC that such an approach would be objectionable in principle because it is uncertain and open-ended and, as such, inimical to good administration."
"46. In the present case, there was no statutory obligation to consult. It is not suggested that there was a promise to consult or a legitimate expectation based on any representation or assurances that there would be consultation of the kind now sought. It is not suggested that this is a case in which there is an established practice of consultation.
47. Therefore, reliance has to be and is placed on the fourth example in para 98 sub-para 2. of Plantagenet Alliance : namely, where, in exceptional cases, a failure to consult would lead to "conspicuous unfairness". Such cases are exceptional for the reasons explained in the passage from Plantagenet Alliance which I have set out; see especially sub- paragraphs 3, 6, 9 and 11 of para 98 in the quotation above. It is accepted that this is not a case in which the claimants can rely on past conduct to create "conspicuous unfairness" as in R (Brooke Energy Limited) v. Secretary of State for Business, Energy and Industrial Strategy  EWHC 2012 (Admin) at para 66 .
48. Given the preliminary and general nature of the Strategy, I am not persuaded that consultation was legally required in order to avoid conspicuous unfairness or irrationality (even if, which the defendant does not accept, irrationality can be separated from the conspicuous unfairness exception). The Strategy did not immediately make any changes to law or detailed policy. It essentially provided a policy framework within which more specific future policies would be developed and implemented. The lack of specifics is, in fact, one of the criticisms made of it in the claimants' evidence (para 6 of the second witness statement of Jean Eveleigh). I recognise that the Strategy was of great interest and importance to the claimants, but the same might be said of many government policy documents and there is, nevertheless, no general common law duty of consultation. It was not as a matter of fact conspicuously unfair to publish this particular Strategy without full consultation. In my judgment, neither the content of the Strategy, nor its potential impact, made it one of those exceptional cases in which full consultation would be required."
"2. DHSC engaged extensively with the sector to support the content of this publication, a chorological summary of which is below.
3. DHSC's far-reaching engagement programme included, but is not limited to:
a. bilateral discussions, beginning in March 2021, with disabled people's organisations and lived experience representative groups. All attendees were asked their priorities for social care reform;
b. an initial sequence of roundtables in April 2021, engaging over 70 national stakeholders to inform the shape of the vision and outline priorities for change. All attendees were asked their priorities for social care reform;
c. a themed series of workshops in June 2021 involving over 90 national stakeholders. Discussion focussed on four priority themes emerging from the first series of engagements (see a. and b. above) – these included: integration, market shaping and commissioning, workforce and care quality, and new models of care, technology and innovation;
d. in-depth workshops across regions in England in August 2021, to engage with a diverse range of local stakeholders including providers, local authorities, local charities and support groups, as well as people who draw on care and support. All attendees were asked their priorities for social care reform; and
e. further workshops in August 2021 in collaboration with Carers UK and Social Care Futures to hear from unpaid carers and those who draw on care and support. All attendees were asked their priorities for social care reform.
4. Following the publication of Build Back Better: Our Plan for Health and Social Care on 7 September 2021, the Department intensified its work with the sector to shape its reform White Paper – People at the Heart of Care - as the next major step on the reform journey, by:
a. attending large external speaking engagements to discuss plans and take questions, including with local authority leaders from across England and at the Carers UK conference in November 2021;
b. setting up specific advisory groups of diverse stakeholders for each theme of the paper including assurance, unpaid carers, technology, market shaping, workforce, innovation and models of care, housing, and information and advice – these stakeholder groups met to provide advice to the department and support policy development, and several included people with lived experience of care and support;
c. working with Think Local Act Personal and members of the Health and Wellbeing Alliance Social Care Subgroup to ensure that our approach to reform was informed by voices of those who draw on care and support;
d. arranging detailed workshops with over 60 organisations and individuals across all regions in England to discuss choice, control, and independence; outstanding quality; and fairness and accessibility as the core pillars of our vision for reform;
e. supporting and collaborating to deliver workshops for specific audiences, including officials and Ministers meeting jointly with a range of organisations representing working-age disabled adults. Other subject-specific sessions were held with providers, unpaid carers, and local authorities; and,
f. working closely with stakeholders to refine the language used in People at the Heart of Care. The included sharing sections of the draft document in advance of publication with a diverse range of circa 15 sector leaders, including providers, local authority representatives, charities, and others, to discuss the content."
"9. The question arose whether further consultation was required before the new policy was implemented. Ministers were advised that there was no formal requirement to consult but that it would be helpful to seek the views of key stakeholders. If significant issues arose there could, it was contemplated, be a return to the possibility of a formal consultation."
"32. I do not accept the submission that a decision-maker can routinely pick and choose whom he will consult. A fair consultation requires fairness in deciding whom to consult as well as fairness in deciding the subject matter of the consultation and its timing. The Buckinghamshire case was in a different statutory context in which it was decided that the local authority need not be consulted. No general principle that it is for the decision-maker alone to decide whom to consult can be extracted from that decision.
33. The particular context must, however, be considered. The fairness of the 2010 consultation must be considered in the context of a very full consultation having been conducted in 2009. In that consultation, over a longer period, the council and all local planning authorities were given an opportunity to make representations upon a series of options, which included Option 3 subsequently adopted by the Secretary of State in September 2010. Option 3 was placed before them in 2009 and detailed submissions as to its adverse impact, and as to specific problems likely to arise, could have been, and probably were, made. I do not accept that, upon a change of Government policy, the entire process needed to be repeated. In 2010, the Government was entitled to conduct a more limited consultation, both as to the identity of consultees and the content and duration of the consultation.
38. That recent and comprehensive consultation in 2009 is in my judgment the key to the decision in the present situation. The Secretary of State was minded to make the orders challenged notwithstanding the strong, articulated objections to them by local planning authorities, of which he was aware. The decision to make them was a political decision which the Secretary of State was entitled to make. In the circumstances, he was then entitled, first, to make the consultation a limited one and, secondly, to decide that there was no evidence of significant new issues arising, which required fuller consultation."
"It seems to me, from all the authorities to which I have referred, that the common law has clearly given special weight to the citizen's right of access to the courts. It has been described as a constitutional right, though the cases do not explain what that means. In this whole argument, nothing to my mind has been shown to displace the proposition that the executive cannot in law abrogate the right of access to justice, unless it is specifically so permitted by Parliament; and this is the meaning of the constitutional right."
a. The right of access to justice is a constitutional right inherent in the rule of law, which includes the right of access to the courts, to legal advice, and to communicate confidentially with a legal adviser: R (UNISON) v Lord Chancellor  3 WLR 409, , .
b. The right of access to justice means not merely theoretical but effective access in reality. The effectiveness of access must be decided according to the likely impact of arrangements in the real world on access to justice: UNISON, , . Impediments to the right of access can constitute a serious hindrance, even if they do not make access completely impossible: .
c. Where a policy affects access to justice, 'it is sufficient if a real risk of prevention of access to justice is demonstrated. That means that, in order to test the lawfulness of a measure on this basis, it is legitimate to have regard to evidence regarding its likely impact and the court has to make an overall evaluative assessment whether this legal standard is met or not (and statistics might have a part to play in making such an assessment. R (A) v Secretary of State for the Home Department  1 WLR 3931, . Anecdotal evidence provided in the form of case studies from lawyers representing affected individuals may suffice for a finding there is a real risk of impediment to access to justice: R (FB) (Afghanistan) v Secretary of State for the Home Department  2 WLR 839.
"80. … In UNISON this court held that there is a fundamental right under the common law of access to justice, meaning effective access to courts and tribunals to seek to vindicate legal rights, which means that the executive is under a legal obligation not to introduce legal impediments in the way of such access save on the basis of clear legal authority: see the discussion by Lord Reed JSC in UNISON at paras 66–98. The decision was concerned with the introduction of an order imposing fees to bring claims in an employment tribunal, but the principles stated are of general application. The test applied was whether the making of the order created "a real risk that persons will effectively be prevented from having access to justice" (para 87; see also para 85, where R (Hillingdon London Borough Council) v Lord Chancellor (Law Society intervening)  1 FLR 39 is referred to as authority for such a test). As Lord Reed JSC observed (para 91), it is sufficient if a real risk of prevention of access to justice is demonstrated. This means that, in order to test the lawfulness of a measure on this basis, it is legitimate to have regard to evidence regarding its likely impact and the court has to make an overall evaluative assessment whether this legal standard is met or not (and statistics might have a part to play in making such an assessment). In UNISON, this court held that the fees order was unlawful on this basis"
"UNISON is concerned with the lawfulness of policy or delegated legislation which creates an unreasonable or unacceptable impediment to being able to have access to a court or tribunal for the determination of legal rights and obligations: see our judgment in the A case  1 WLR 3931, para 80".
138. In FB, -, Hickinbottom LJ said:
"91. The importance of the rule of law, and the role of access to justice in maintaining the rule of law, was recently considered by Lord Reed JSC (with whom the rest of the Supreme Court agreed) in R (UNISON) v Lord Chancellor  UKSC 51;  3 WLR 409 at :
'68. At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade…".
Thus, the right to access to justice is an inevitable consequence of the rule of law: as such, it is a fundamental principle in any democratic society which more general rights of procedural fairness are to a large extent designed to support and protect (see, e.g., R (CPRE Kent) v Dover District Council  UKSC 79:  1 WLR 108 at  per Lord Carnwath of Notting Hill JSC, and R (Citizens UK) v Secretary of State for the Home Department  EWCA Civ 1812;  4 WLR 123 at - per Singh LJ).
92. The right of access to justice means, of course, not merely theoretical but effective access in the real world (UNISON at  and ): it has thus been said that 'the accessibility of a remedy in practice is decisive when assessing its effectiveness' (MSS v Belgium and Greece (European Court of Human Rights ('ECtHR') Application No 30696/09) (2011) 53 EHRR 2 at , emphasis added). This means that a person must not only have the right to access the court in the direct sense, but also the right to access legal advice if, without such advice, access to justice would be compromised (R (Daly) v Secretary of State for the Home Department  UKHL 26;  2 AC 532 at  per Lord Bingham of Cornhill; and MSS at ). For these rights to be effective, as the common law requires them to be, an individual must be allowed sufficient time to take and act on legal advice.
93. So, where tribunal rules set a "timetable for the conduct of… appeals [that was] so tight that it [was] inevitable that a significant number of appellants [would] be denied a fair opportunity to present their cases…", those rules were held to be unlawful (The Lord Chancellor v R (Detention Action)  EWCA Civ 840;  1 WLR 5341, the quotation being from  per Lord Dyson MR).
94. Even closer to this case, in the 2010 Medical Justice case at , Silber J said that effective legal advice and assistance requires sufficient time to be given between service of notice of a decision by the Secretary of State which puts the individual at risk of removal (in that case, notice of removal directions) and removal itself:
'… to find and instruct a lawyer who:
(i) is ready to provide legal advice in the limited time available prior to removal, which might also entail ensuring that the provider of the advice would be paid;
(ii) is willing and able to provide legal advice under the seal of professional privilege in the limited time available prior to removal which might also entail being able to find and locate all relevant documents; and
(iii) (if appropriate) would after providing the relevant advice be ready, willing and able in the limited time available prior to removal to challenge the removal directions.' (emphasis in the original)
On appeal, upholding Silber J, Sullivan LJ said (the 2010 Medical Justice case (CA) at ):
'I refer to 'effective' legal advice and assistance because the mere availability of legal advice and assistance is of no practical value if the time scale for removal is so short that it does not enable a lawyer to take instructions from the person who is to be removed and, if appropriate, to challenge the lawfulness of the removal directions before they take effect.'"
"120. This ground involves a systemic challenge to the JRI Policy itself. Although systemic unfairness may be illustrated by what has happened in individual cases, such a challenge does not focus upon the consequences of unlawfulness for a particular individual or group as do most judicial reviews, but rather upon the administrative scheme itself and the risk of unfairness in a public law sense arising from that scheme as a scheme. As Lord Dyson MR said in Detention Action, at , 'a system will only be unlawful on grounds of unfairness if the unfairness is inherent in the system itself"; or, as Sedley LJ put it in R (Refugee Legal Centre) v Secretary of State for the Home Department  EWCA Civ 1481;  1 WLR 2219, at , it is sufficient for the claimant to show that there is "a proven risk of injustice which goes beyond aberrant interviews or decisions and inheres in the system itself". As I observed in R (Woolcock) v Secretary of State for Justice  EWHC 17;  4 WLR 49 at [68(iv)], there is a conceptual difference between something inherent in a system which gives rise to an unacceptable risk of unfairness, and any number (even a large number) of decisions that are simply individually aberrant."
"2. In these claims, the Appellants contend that the Secretary of State's policy for removing those without the right to enter or remain in the UK – which, for those who fall within its scope, after a relatively short notice period in which removal cannot be effected, sets a removal window within which the individual can be removed at any time without further notice – is unlawful as abrogating the right to access to justice in respect of decisions which bear upon their removal. In brief, it is submitted that the notice period is too short for those affected to instruct lawyers to make representations that leave to enter or remain should be granted, for any such representations to be considered by the Secretary of State, and then for an application to be made to a court or tribunal to challenge any negative decision; and so it is inevitable that many negative decisions affecting their right to remain and their removal (including decisions to extend the notice period or defer the removal window) are made after the notice period has ended, so that they become at risk of immediate removal without an adequate opportunity to challenge the material decision or decisions before a court or tribunal."
"36. This engagement gave an opportunity for a range of stakeholders to set out the main issues which they considered required reform and central government intervention. A central purpose of the exercise was to establish prioritisation of reform. It was open to stakeholders to raise dispute resolution as an issue which should be prioritised. On a few occasions, a dispute resolution procedure was raised (for example through the Health and Wellbeing Alliance Social Sub-Group, two responses included reference to having better complaints procedures). However, overall it was not a significant feature of reform priority.
37. Taking account of this extensive engagement exercise, the Secretary of State had to make policy decisions about which areas to prioritise early spending on. The engagement exercise was used to identify common themes and priorities. The most common priorities for reform cited during this engagement included: pressures recruiting and retaining the social care workforce; the need for better integration between health and care services; the recognition of the adult social care sector, the importance of people living independently in their own home or care setting that suits their needs; and the need for digital innovation across the sector."