Common Law Duty to Consult Small, Identifiable Vulnerable Service Users Before Closure; Limits on Using Senior Courts Act 1981 s 31(2A) to Withhold Relief for Non‑Consultation

Case: BUJ, R (On the Application Of) v London Borough of Bromley [2026] EWCA Civ 888
Court: Court of Appeal (Civil Division) (Lord Justice Baker, Lord Justice Dingemans, Lady Justice Whipple)
Date: 10 July 2026
Appeal from: Administrative Court [2026] EWHC 102 (Admin)

1. Introduction

The appeal concerned a local authority’s decision to close an adult education centre (“the Poverest Centre”) used by adult learners with learning difficulties and disabilities (“LLDD”). The appellant, BUJ (a protected party acting by his father and litigation friend), challenged the decision by judicial review primarily on the basis of an unlawful failure to consult LLDD users and carers.

The Administrative Court found the failure to consult was unlawful, but refused relief under Senior Courts Act 1981 s 31(2A) (on the basis it was “highly likely” the outcome would have been the same). The Court of Appeal allowed BUJ’s appeal, holding that s 31(2A) was misapplied on the facts, quashed the closure decision, and required lawful consultation.

Key issues on appeal

  • Whether time should be extended for bringing the claim (CPR 54.5; CPR 3.1(2)(a); Senior Courts Act 1981 s 31(6)).
  • Whether a common law duty to consult LLDD users and carers arose before closure.
  • Whether there was a breach of the public sector equality duty (“PSED”) under Equality Act 2010 s 149.
  • Whether the judge properly applied Senior Courts Act 1981 s 31(2A) where consultation was unlawfully omitted.
  • Costs (which fell away given the appeal outcome).

2. Summary of the Judgment

  • Extension of time upheld: the claim could not realistically have been brought earlier because the decision was not communicated to LLDD users within the three-month window.
  • Duty to consult confirmed: fairness required consultation with the small, identifiable group of LLDD users (about 99) and their carers before deciding to close.
  • No PSED breach: the decision-maker had due regard to disability impacts via the Equality Impact Assessment (EIA).
  • s 31(2A) misapplied: the materials did not justify concluding it was “highly likely” that consultation would not have made a substantial difference; multiple options existed and the position remained capable of development.
  • Relief granted: the closure decision was quashed; the council must consult LLDD users and carers in accordance with the Gunning principles before re-deciding.

3. Analysis

3.1 Precedents cited and how they shaped the reasoning

(A) No general duty to consult; when consultation becomes legally required

  • R(Moseley) v Haringey London Borough Council [2014] UKSC 56; [2014] 1 WLR 3947: cited for the foundational proposition that there is no general common law duty to consult, and for the broader context that consultation duties may arise by statute, promise/practice (legitimate expectation), or fairness in the circumstances.
  • R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213: used to frame the doctrine of procedural legitimate expectation and (critically here) the idea that where an individual or small group has “pressing and focussed” reliance interests, fairness may require notification and consultation before a detrimental change.
  • R(Bhatt Murphy) v Secretary of State for the Home Department [2008] EWCA Civ 755; (2008) Times 21 July: relied on for the taxonomy that a duty to consult may arise from “secondary” procedural legitimate expectation grounded in fairness, sometimes described as cases of “conspicuous unfairness.”
  • R(Plantagenet Alliance) v Secretary of State for Justice [2014] EWHC 1662; [2015] 3 All ER 261: cited as an example of the “conspicuous unfairness” framing and the high bar for fairness-based consultation duties outside classic promise/practice situations.

(B) Closure of facilities for vulnerable users: fairness-based consultation duties

  • R v Devon County Council, ex parte Baker [1995] 1 All ER 73: an important analogue: residents of a council-run residential home had to be consulted before closure to give a reasonable opportunity to object.
  • R(LH) v Shropshire [2014] PTSR 1052: similarly concerned closure of a day centre; confirms that, absent statute, consultation may be required because public bodies must act fairly when making decisions seriously affecting users and carers.
  • R(L) v Warwickshire County Council [2015] EWHC 203 (Admin); [2015] BGLR 81: contrasted as a context where the affected class is very broad (overall budget setting), making it harder to establish a common law duty to consult.
  • R(BAPIO) v Secretary of State for the Home Department [2007] EWCA Civ 1137; [2008] ACD 7: referenced for caution in overlaying common-law consultation requirements onto structured statutory schemes, and as an example of a failed attempt to imply consultation.

(C) “Prejudice” and procedural fairness

  • R(Save Stonehenge World Heritage Site Limited) v Secretary of State for Transport [2024] EWCA Civ 1227; [2025] PTSR 726: the council argued this introduced an additional “prejudice” requirement. The Court of Appeal rejected that reading: lack of prejudice may explain why unfairness is not made out in a given case, but it is not an extra, freestanding hurdle once unfairness is otherwise established.

(D) PSED approach

  • R(Bracking) v SSWP [2013] EWCA Civ 1345; [2014] Eq.LR 60: cited for the orthodox requirements: “due regard” must be exercised with rigour and an open mind; it is non-delegable; but does not dictate a particular outcome.

(E) s 31(2A) “highly likely” and constitutional caution

  • R(Public and Commercial Services Union) v Minister for the Cabinet Office [2017] EWHC 1787 (Admin); [2018] ICR 269: cited for the proposition that “highly likely” is a high threshold.
  • R(Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489; [2025] 4 WLR 58: used to illustrate that even where an opportunity to make representations was unlawfully lost, s 31(2A) can apply if the court can properly conclude those representations would highly likely not have affected the result—on the facts of that case.
  • Simplex GE (Holdings) and another v Secretary of State for the Environment (1989) 57 P&CR 306: referenced for the pre-s 31(2A) “necessarily the same decision” approach, and to explain that s 31(2A) replaced that narrower discretion.
  • Goring-on-Thames Parish Council: cited for the point that an overly narrow construction of “conduct” under s 31(2A) is not appropriate.

3.2 Legal reasoning

(1) Extension of time: practical ability to challenge and good administration

Although the decision was taken on 22 January 2025 and the claim was issued on 30 July 2025 (outside three months), the Court of Appeal upheld the extension because the council had not communicated the decision to LLDD users before expiry of the time limit, and correspondence contributed to confusion about whether closure was merely proposed. On detriment to good administration (Senior Courts Act 1981 s 31(6)), the court accepted that the closure and housing development timescales meant the brief delay caused no substantial hardship.

(2) Common law duty to consult: small, identifiable group + serious impact + fairness

The Court of Appeal affirmed that this was not a general “service users must always be consulted” case. Rather, it fell within the fairness-based category where:

  • the affected class was small and readily identifiable (around 99 LLDD users and their carers);
  • the service had a central, life-structuring role for some users;
  • closure represented a significant change in how specialist provision could be accessed, including travel and routine disruption;
  • users and carers had relevant, decision-bearable information to offer (including on the importance of specialist provision in the south of the borough).

Framed in the language used by the court, it would be irrational to close without first giving this group the opportunity to make representations; therefore, fairness generated a legitimate expectation of consultation, consistent with ex parte Baker and R(LH).

(3) PSED: EIA enabled due regard; no unlawful reliance on extraneous material

The Court of Appeal rejected the PSED challenge. The executive had an EIA that identified the high proportion of disabled users, the potential for reduced attendance due to travel and accessibility barriers, and proposed mitigations through programming and site choices under the hub-and-spoke approach. Even if there was debate about whether mitigations “remove” versus “mitigate” barriers, the court held the decision-maker had the legally required “due regard.”

(4) s 31(2A): why relief could not be refused on “highly likely” grounds

The Court of Appeal’s key intervention lay in its application of s 31(2A) to an unlawful failure to consult. It rejected any categorical rule that s 31(2A) is unavailable where consultation should have occurred; the statute can apply, depending on facts (as in Bradbury).

But here, the judge could not properly conclude it was “highly likely” the outcome for BUJ would not have been substantially different if consultation had occurred, because:

  • there were multiple options for the site (nine options identified in the options appraisal), some of which could have allowed partial retention/remodelling or different configurations;
  • the council’s approach was shown to be capable of evolution (e.g., shift from “sell” to “develop for affordable housing”; changes in projected housing numbers);
  • the wider estate review showed that the list of “surplus” properties changed over time (20 → 14 → 11), undermining inevitability;
  • consultation could have influenced judgments about the weight to give to localised specialist LLDD provision, including whether alternatives could meet needs without full closure.

The court accepted it might be “possible, perhaps probable” the same decision would be made after consultation, but that was not enough. “Highly likely” is a demanding standard; on these materials, it was not met. Accordingly, the decision was quashed and consultation required.

3.3 Impact

(A) Adult social/education facility closures: when a duty to consult is most likely

The judgment reinforces that local authorities contemplating closure or relocation of provision used by vulnerable groups must consider whether the affected cohort is small and identifiable, and whether the impact is serious and specific enough that fairness requires consultation. This is especially likely where the service has long been provided to a defined group and the decision materially affects access, routines, and specialist support.

(B) s 31(2A) in consultation cases: evidential burden on “inevitability” is real

Authorities seeking to rely on s 31(2A) after an unlawful failure to consult should expect close scrutiny of whether the decision was genuinely fixed or effectively inevitable. Where multiple options exist and the decision-making is demonstrably iterative, courts may be reluctant to conclude (to the “highly likely” standard) that consultation would not have made a substantial difference.

(C) Process discipline: communication of decisions and litigation risk

The extension-of-time reasoning underlines that failure to clearly communicate a decision—while later relying on strict JR time limits—creates litigation risk. Clear notification, accurate descriptions (proposal vs decision), and coherent timelines matter for both fairness and good administration.

4. Complex concepts simplified

  • Common law duty to consult: There is no automatic duty to consult before public decisions. A duty can arise if statute requires it, if the authority promised or routinely consulted (legitimate expectation), or if fairness makes consultation necessary to avoid an abuse of power.
  • Procedural legitimate expectation (fairness-based): Even without a promise, a small group with a strong, specific interest in continued provision may reasonably expect consultation before a damaging change—because that is what acting fairly entails.
  • Gunning principles: A lawful consultation must be undertaken at a formative stage, give sufficient reasons/info to enable intelligent consideration and response, allow adequate time, and conscientiously consider responses.
  • PSED (Equality Act 2010 s 149): A duty of “due regard,” not a duty to achieve a particular outcome. The decision-maker must properly consider equality impacts (with rigour and an open mind) before deciding.
  • Senior Courts Act 1981 s 31(2A): Even where unlawfulness is found, the court must refuse JR relief if it appears “highly likely” the outcome for the claimant would not have been substantially different absent the error—unless there is “exceptional public interest” (s 31(2B)).

5. Conclusion

BUJ is a significant Court of Appeal authority on two connected themes: (1) when fairness generates a common law duty to consult service users—particularly a small, identifiable group of vulnerable users facing serious disruption from closure of a familiar facility—and (2) the proper discipline required when applying s 31(2A) to withhold relief for a failure to consult. The decision confirms that s 31(2A) can apply in consultation cases, but where options were open and the decision-making was capable of change, courts should be slow to conclude—at the demanding “highly likely” threshold—that consultation would not have made a substantial difference. The practical result was robust: the closure decision was quashed and the council must now consult LLDD users and carers in accordance with Gunning before re-deciding.