A recent case (Bokrosova v London Borough of Lambeth [2015] EWHC 3386 (Admin), decided by Mrs Justice Elisabeth Laing) demonstrates just what a minefield consultation can be for public authorities. For Lambeth Council came unstuck for effectively moving the goalposts in relation to its published consultation arrangements.

The case concerned the need to bring the council’s Cressingham Gardens Estate (CGE) up to the Lambeth Housing Standard (LHS). The council therefore said it would work with tenants and the tenants’ and residents’ association to ‘look at all possible options for improving [CGE]; and so long as they are high quality, affordable, sustainable and meet the needs of residents… then they will be considered’.

Section 105 of the Housing Act 1985

Headed ‘Consultation on matters of housing management’, so far as material, this provides that landlord authorities must maintain appropriate arrangements to enable those of its secure tenants likely to be substantially affected by a matter of applicable housing management: (a) to be informed of the authority’s proposals in respect of the matter, and (b) to make their views known to the authority within a specified period. Before making any decision the authority must consider any representations in accordance with those arrangements.

Where there is either a new programme of maintenance, improvement or demolition, or a change in the authority’s practice or policy likely substantially to affect secure tenants, the authority must publish and make available details of the arrangements made in accordance with section 105 of the Housing Act 1985.

In the course of discussions with residents in 2014, the council issued a document containing five options:

  • ‘1’ was to refurbish all homes. This would cost £12-15m, but other necessary repairs would increase that cost;
  • ‘2’ and ‘3’ provided for refurbishment with increasing levels of demolition and new building;
  • ‘4’ was described as ‘medium intervention development’; and
  • ‘5’ described as ‘comprehensive redevelopment’.

The document indicated that a series of workshops would be held to enable discussion. At the end of the process ‘… you will be asked for your view on each of the affordable and deliverable options as part of the test of opinion’. The options would be presented to the cabinet member for housing ‘along with the comments received’ so a decision could be made on the preferred option. A further consultation would be carried out after the decision of the cabinet member.

On 13 February 2015 the council’s finance officer created a document which she had apparently emailed to the project officer, Mr Vokes, for the attention of the CGE Project Group. This was apparently not produced in the proceedings until the second morning of the hearing. As the judge indicated, this was ‘an important document, since it was said to be what led the council to withdraw three options from the consultation arrangements’. Therefore, ‘irrespective of any requests by the claimant or anyone else, the council should have disclosed it in this litigation sooner than it did, pursuant to its duty of candour’.

On 26 February, the council’s cabinet member for housing wrote to residents indicating that: ‘… even using a best-case scenario the lowest cost for refurbishment of the whole estate is still three times what the council can afford and it would not be right to continue to consult with residents about an option which is simply unaffordable and cannot happen’.

On 9 March the cabinet decided:

  • the cost estimate to bring the estate up to the LHS was £9.4m;
  • there was then no provision for the cost of a refurbishment-only programme in the council’s LHS programme, and the council had a duty to say what was feasible within budgetary constraints;
  • to recommend that officers consult further on options for significant regeneration of CGE (as set out in the report) and that a viable regeneration proposal be brought back to the council’s cabinet in May 2015 with full supporting evidence; and
  • there was a commitment to work with residents to develop the regeneration proposals.

Permission to apply for judicial review was granted, since the decision to drop options 1-3 above was arguably unlawful because:

  • the cabinet did not conscientiously take into account the views of residents expressed in response to the information pack issued by the council and other information provided at workshops and meetings, in breach of section 105 of the act and the common law requirements for a lawful consultation; and
  • the council decided not to proceed with options 1-3 because they were ‘not affordable’, in breach of the general requirements of lawful consultation.

Laing J said she had the following matters to determine. The statutory references are to the Senior Courts Act 1981:

i) Was the council’s decision on 9 March to stop consulting on options 1, 2 and 3 unlawful?

ii) If so, does it appear to me to be highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred (‘the section 31(2A) question’)?

iii) If so, are there nonetheless reasons of exceptional public interest for granting relief to the claimant (‘the section 31(2B) question’)?

iv) If so, was there undue delay in making the application for judicial review and do I consider that the granting of the relief sought would cause substantial hardship to, or substantially prejudice the rights of, any person or be detrimental to good administration (as per section 31(6) of the 1981 act)?

As to ‘i’, Laing J said the ‘question is whether it was lawful for the council to reject options 1-3 without completing the process which it had advertised to tenants, and, thus, in breach of the section 105 arrangements it had chosen to make’. This was not an easy question and she found powerful the council’s submission that it ‘could not be required to continue with the advertised consultation when it knew that an option or options were not affordable’.

She nevertheless pointed to a lack of financial clarity in the council’s case and was not satisfied on the evidence that enough had changed ‘in February 2015 to entitle the council to stop consulting on options 1, 2 and 3’, contrary to the terms of the published section 105 arrangements. She therefore found the council’s decision had been unlawful.

On ‘ii’, section 31(2A) of the 1981 act enables the court to refuse relief or an award if it considers it ‘highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’. On the evidence, the judge found that, if pursuant to section 105 the financial position had been placed much more fully before the council she did not consider it ‘highly likely that the decision would have been the same’. Therefore, she found no ground for refusing relief on this basis.

On ‘iii’, section 31(2B) enables a court to disregard section 31(2A) ‘if it considers that it is appropriate to do so for reasons of exceptional public interest’. Laing J said that if she had needed to make a decision on this question, she would have decided that it was not appropriate to grant relief on public interest grounds.

Finally, the judge found that there had been no ‘undue delay’. The claimant had acted promptly throughout. The reason the claim was not lodged sooner was partly because of the time taken for lawyers to investigate and advise, and for legal aid to be granted. But partly also ‘because of the council’s equivocations in the pre-action letters about precisely what it had decided’. In the circumstances, Laing found the decision of 9 March to have been unlawful and there were no bars to the grant of relief.

As the court indicated, section 105 reflects the common law ingredients of the public law duty of fairness and the statutory aim of securing participation of tenants in decisions which will substantially affect their homes. But as with all JRs, the judge did not seek to supplant the council as decision-maker. She simply found it to have acted unlawfully in reneging on the ‘detailed and sophisticated programme of consultation’ it had previously announced.

Nicholas Dobson, Freeths