Know your rights: Consultations

There is no general rule that a local authority must consult before every service change. A legal duty to consult may arise from:

• A specific statutory requirement.
• A clear promise made by the authority.
• An established and sufficiently consistent past practice, capable of creating a legitimate expectation.
• The common- law duty of fairness in the circumstances of the particular decision.

Consultation is particularly likely to be required where a proposal would make a significant change to an established service, such as closing a care home or day centre, ending a home-care arrangement, changing transport, increasing charges, or replacing a service with a substantially different model.

A general consultation about a policy of “modernisation”, personal budgets or service redesign may not be enough to consult people fairly about the specific closure of the service they use. In R (LH) v Shropshire Council [2014] EWCA Civ 404, consultation on a general programme did not fairly consult users and relatives about the particular closure of Hartleys Day Centre.

If a proposal changes substantially after consultation, further consultation may be required where the change is sufficiently material that people have not had a fair opportunity to comment on the proposal actually being considered.
An example of this principle can be seen in the case law on consultation in relation to charging policies. 
A council is not automatically under a common-law duty to consult before changing an adult-social-care charging policy. A duty may arise from legislation, a clear promise to consult, or a sufficiently regular and consistent past practice capable of creating a legitimate expectation.

If a council chooses to consult, however, it must consult fairly. People must have enough information and time to understand the proposed policy, its likely financial consequences and any alternatives, and the council must genuinely consider the responses before making its decision. In R (B) v Cornwall County Council, a consultation on non-residential social-care charging was found defective because consultees had not been given sufficient time to respond; the authority later cured the problem by consulting again before remaking its decision.

A general consultation on a charging policy does not replace the need to assess an individual person’s income , capital, disability-related expenditure and ability to pay in accordance with the applicable legal rules.

There is no universal legal minimum or maximum consultation period. In particular, there is no rule that every consultation must last two, six or twelve weeks. The question is whether the time allowed is adequate and proportionate in the circumstances.

Relevant factors include:

• How significant, complex and urgent the proposal is.
• The likely effect on people who use the service and their carers.
• Whether enough information has been provided to understand the proposal.
• Whether people need time to obtain advice, advocacy or support to respond.
• Whether the authority has undertaken genuine earlier engagement.
• The accessibility of the consultation materials and response methods.

In R (AA) v Rotherham Metropolitan Borough Council [2019] EWHC 3529 (Admin), which concerned closure of a day centre for adults with learning disabilities, the court assessed the later, shorter consultation in the context of the earlier engagement. The case does not establish a minimum consultation period, but it shows that fairness is assessed by looking at the process as a whole.

A short consultation may be unfair where people need accessible information, support to understand the proposals, advocacy, individual meetings, or help to respond. A council should not assume that an online questionnaire is enough merely because it is available. In R (Binder) v Secretary of State for Work and Pensions [2022] EWHC 105 (Admin), a disability-related consultation was unlawful because its design did not permit the intelligent consideration and response required by the common law.

When consulting on changes affecting people with learning disabilities, dementia, sensory impairments, communication needs or other disabilities, a council should make sure that people can understand the proposals and genuinely participate.

Easy-read documents may be important, but easy read will not meet every person’s needs. Depending on the people affected, a fair and lawful process may require:

• Plain-language and accessible explanations of the actual proposal and its consequences.
• Easy-read, large-print, audio, Braille, translated or other alternative formats.
• Paper, telephone, face-to-face and non-digital ways to respond.
• Meetings that allow people to ask questions and express their views, individually or in groups.
• Communication support, trusted-person support or advocacy.
• Enough time for people to obtain help and make an informed response.

These steps are not merely good practice. A council exercising public functions has duties under the Equality Act 2010 to make reasonable adjustments so that disabled people are not placed at a substantial disadvantage. It must also comply with the public sector equality duty, which requires real, timely and informed consideration of the impact of its decision on disabled people and of possible steps to remove or reduce disadvantage.

An equality impact assessment can help demonstrate that the authority has considered these matters. But there is no freestanding legal duty to produce a document with that title, and a completed form will not establish compliance if the authority has not in substance understood the likely effects of its proposal, considered alternatives or mitigation, and had due regard to the statutory equality aims.

A general public consultation is not a substitute for individual rights under the Care Act 2014.

Where a proposed service change affects how an individual’s needs are met, the council may need to assess or review the person’s needs and care and support plan. It must involve the person in that process. It must also involve any carer the person has, as well as any person whom the adult asks it to involve. A carer’s statutory involvement is not expressed as depending on the adult’s consent .

“Involvement” is not defined in the Act. It should mean meaningful participation in the process: the opportunity to give information about needs, outcomes, communication, risks, daily life and the sustainability of caring; to understand the proposal; and to comment on possible arrangements and their impact.

Involvement does not necessarily give a carer an unlimited right to receive all of the adult’s confidential records or assessment paperwork. A capacitous adult’s confidentiality, data-protection rights and views about disclosure remain relevant. The better approach is to involve the carer as fully as possible in the assessment and planning process, receive and consider the carer’s evidence, seek and record the adult’s views about sharing information, and share information where there is a lawful and proportionate basis. “GDPR” should not be used as a blanket reason to refuse to hear from, or involve, a carer.

The council must also consider whether the person or carer would have substantial difficulty being involved in an assessment, care plan or review. If so, and there is no appropriate person able and willing to support them, it must arrange an independent advocate under the Care Act 2014.

Capacity is decision-specific. If there is reason to doubt whether a person can make a relevant decision or take part in a particular process, the Mental Capacity Act 2005 applies. The authority must take practicable steps to support the person to make their own decision before concluding that they lack capacity; any best-interests decision must then be made lawfully.

Closure of a care home may engage Article 8 of the European Convention on Human Rights particularly directly because the home is the resident’s home. Relocation may affect private life, family visiting, autonomy, identity, routine, relationships and psychological integrity.

Article 8 does not give a resident an absolute right to prevent a closure or to remain in a particular building regardless of cost or wider public interest. But it requires the authority to take the interference seriously, obtain sufficiently individual-sensitive evidence, consider alternatives and mitigation, and justify the proportionality of its decision. R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 remains an exceptional case concerning a “home for life” assurance; it does not mean that every care-home closure is unlawful.

A council may close a day centre, decommission commissioned day provision, decide not to reopen a temporarily suspended service, or replace existing provision with a different model. It should identify exactly which decision it is taking and when the decision becomes final. A general policy of “modernisation”, personal budgets or community support is not necessarily a decision to close a particular centre or withdraw a particular service.

The fact that a service was temporarily suspended—for example because of public-health restrictions, building problems, staffing difficulties, provider withdrawal or financial pressure—does not mean that permanent non-reopening can occur without a lawful decision-making process.

R (LH) v Shropshire Council [2014] EWCA Civ 404 establishes the importance of consulting affected users and relatives on the particular closure proposal, rather than relying solely on an earlier high-level policy consultation. B v Worcestershire County Council [2009] EWHC 901 (Admin) is relevant where an authority proceeds without sufficient evidence that alternatives can meet the needs previously served. Conversely, R (AB) v Slough Borough Council [2022] EWHC 1772 (Admin) confirms that there is no universal rule requiring full individual assessments of every user before a strategic closure decision. The adequacy of the evidence, consultation and proposed arrangements is fact-specific.

Day-service changes may engage Article 8 through private life: autonomy, relationships, community participation, routine, dignity, psychological integrity and personal development. The impact can be substantial where the service is central to a person’s communication, social world, emotional stability, safeguarding , meaningful activity, or ability to continue living with family. It may also affect the sustainability of caring.

• Consultation must be meaningful, not a formality after a decision has been made.
• A general policy consultation may not be enough for the proposed closure of a particular service.
• There is no fixed lawful consultation period; adequacy depends on the proposal and the people affected.
• Accessible documents alone may not be enough. People may need time, meetings, communication support, advocacy and non-digital ways to participate.
• General consultation cannot replace individual Care Act assessment, review, involvement, care planning or advocacy.
• A council may decide in principle to close or change a service before every individual review is complete, but it needs a sufficient evidence base and must complete the individual work before changing a person’s actual care arrangements.
• Closure of a care home, change of home-care provider and closure of a day service can all have serious consequences, but they engage different considerations and require different evidence.
• Human-rights, equality and wellbeing impacts should be addressed as part of the decision-making process.

This guide gives general information. It is not legal advice. The law applying to a proposed change will depend on the service, the people affected, the council’s published policies, what has been promised previously, and the evidence available.

For information and support from Mencap, visit Mencap’s website or contact Mencap through its current published advice and support channels.

You may find the following sources useful:

• Care Act 2014 and Care and Support Statutory Guidance — information about assessment, eligibility, care and support planning, review, advocacy, charging and carers’ rights.
• Equality and Human Rights Commission — information about the Equality Act 2010, reasonable adjustments and the public sector equality duty.
• Local Government and Social Care Ombudsman — information about making a complaint about a council’s adult-social-care decision-making or service.
• GOV.UK — the Cabinet Office Consultation Principles and general information about public consultations.
• Local council adult social care team — ask for the relevant consultation documents, equality information, decision reports, care-and-support review, carers’ assessment, independent advocacy assessment, complaints procedure and charging policy.
• Independent advocacy organisations — if a person has substantial difficulty being involved and has no appropriate person able and willing to support them, ask the council to consider its duty to arrange an independent advocate.
• Specialist legal advice — seek advice promptly if a final decision is imminent or has already been made, because judicial-review challenges are subject to short time limits.

If you are a person with a learning disability , a family member or a carer and you are affected by a proposed change, ask the council for information in a format you can understand and for help to take part. Do not assume that a general consultation ends your right to an individual assessment, care-plan review, carers’ assessment, advocacy or an explanation of how your own needs will be met.