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Moseley, R (on the application of) v London Borough of Haringey
Factual and Procedural Background
Prior to 1 April 2013, a national scheme known as Council Tax Benefit (“CTB”) relieved qualifying households of some or all council-tax liability. Legislation transferred responsibility for designing a replacement Council Tax Reduction Scheme (“CTRS”) to local authorities, subject to a statutory duty to consult “such other persons as [they] consider are likely to have an interest in the operation of the scheme.”
The Local Authority prepared a draft CTRS between July and August 2012. Following publication, it delivered consultation packs to approximately 36,000 households then receiving CTB. Two single parents sought judicial review, alleging that the consultation was unlawful. On 7 February 2013 Judge Underhill (High Court) dismissed the claim. One claimant pursued an appeal; the Court of Appeal (Judges Sullivan, Etherton and Pitchford) also dismissed it on 22 February 2013. Owing to the original claimant’s incapacity and subsequent death, another single parent (“the Appellant”) was substituted and appealed to the Supreme Court.
Legal Issues Presented
- Whether, in the statutory context, fairness required the Local Authority to consult on realistic alternative ways of absorbing a funding shortfall (e.g., service reductions or council-tax increases) rather than limiting consultation to its preferred reduction in benefits.
- Whether the Local Authority acted unlawfully by failing to re-consult after central government announced a Transitional Grant Scheme (“TGS”) part-way through the process.
- What remedy, if any, should follow a finding of unlawful consultation.
Arguments of the Parties
Appellant’s Arguments
- The consultation documents presented the proposed benefit reduction as an unavoidable consequence of central-government cuts, thereby concealing viable alternatives.
- Fairness, reflected in the “Sedley criteria,” obliged the Local Authority to outline discarded options and explain their rejection.
- When the TGS emerged, fairness required extension or renewal of consultation to cover that option.
- An unlawful consultation should be quashed and a fresh, lawful process ordered.
Local Authority’s Arguments
- The statutory duty was to consult on the published draft scheme only; there was no obligation to rehearse alternatives it had rejected.
- Alternative methods of funding would have been “reasonably obvious” to consultees; the absence of explicit reference caused no unfairness.
- The late-announced TGS did not materially affect the issues under consultation and therefore did not trigger a duty to re-consult.
- Even if defects existed, the court should not impose a mandatory fresh consultation two years after implementation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Devon CC, ex p Baker [1995] 1 All ER 73 | Common-law duty of fairness and consultation requirements. | Illustrated judicial endorsement of the “Sedley criteria.” |
| R (Osborn) v Parole Board [2013] UKSC 61 | Purposes of procedural fairness: improving decisions and avoiding injustice. | Cited to emphasise why meaningful consultation benefits both decision-making and legitimacy. |
| R v Brent LBC, ex p Gunning (1985) 84 LGR 168 | Formulation of four basic requirements for lawful consultation. | Adopted (“Sedley criteria”) as the governing test of fairness. |
| R v North & East Devon HA, ex p Coughlan [2001] QB 213 | Duty to give consultees enough information to make an intelligent response. | Applied to show the need to outline rejected alternatives and reasons. |
| R (Royal Brompton) v Joint Committee of PCTs [2012] EWCA Civ 472 | Consultation limited to preferred option can suffice if other options are clearly signposted. | Distinguished: here, other options were not signposted and were masked as impossible. |
| Nichol v Gateshead MBC (1988) 87 LGR 435 | Fairness may require reference to discarded alternatives. | Relied upon to support need for at least brief mention of other funding choices. |
| R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 | Unlawful to exclude viable alternatives from consultation. | Cited as analogous authority. |
| R (Montpeliers & Trevors Assoc.) v Westminster CC [2005] EWHC 16 | Requirement to consult on alternative options. | Supported Appellant’s contention. |
| Fletcher v Minister of Town & Country Planning [1947] 2 All ER 496 | Specificity of consultation may depend on sophistication of consultees. | Used to stress need for clarity when consulting economically disadvantaged residents. |
| R (BAPIO) v Secretary of State [2007] EWCA Civ 1139 | Scope of common-law consultation duties. | Referenced by Judge Reed to contrast statutory and common-law contexts. |
| Vale of Glamorgan Council v Lord Chancellor [2011] EWHC 1532 | When detailing rejected options is unnecessary. | Distinguished from the present facts. |
| Port Louis Corp. v AG of Mauritius [1965] AC 1111 | Duty of consultation must be related to statutory context. | Cited to underline flexible, context-specific approach. |
Court's Reasoning and Analysis
1. Both lead judgments endorsed the “Sedley criteria” (consultation at formative stage, adequate information, sufficient time, and conscientious consideration of responses) as a “prescription for fairness.”
2. The statutory test—consulting those “likely to have an interest”—required genuine public participation. The Local Authority’s documents repeatedly asserted that reduced benefits were an inevitable outcome of central-government cuts, thereby presenting a single, pre-ordained solution rather than a genuine choice.
3. Given the economic vulnerability of consultees, fairness demanded at least brief reference to realistic alternatives (raising council tax, reducing services, using reserves) and an explanation of why they were rejected. The omission, combined with language implying inevitability, rendered the exercise misleading.
4. Knowledge imputed to consultees could not cure the defect because the consultation materials implicitly told them that alternative funding routes were off the table.
5. As to the Transitional Grant Scheme announced mid-consultation, the Court found no separate unlawfulness: the key vice—failure to mention fundamental alternatives—already subsumed the TGS point, and practical timing made re-consultation unnecessary.
6. Remedy: A declaration of unlawfulness was appropriate. Ordering a fresh consultation would be disproportionate given that the scheme had operated for two years and statutory revision would in any event require consultation if the Local Authority decided to amend it.
Holding and Implications
HELD: The consultation was unlawful because it failed to provide consultees with sufficient information about realistic alternatives and the reasons for rejecting them. The appeal was allowed to the extent of granting a declaratory order; no mandatory order for a new consultation was made.
Implications: Public bodies must ensure that consultation documents set out, in accessible terms, not only the preferred proposal but also viable alternatives and the rationale for preferring one over the others. This decision reinforces the “Sedley criteria” as the benchmark for lawful consultation and clarifies that misleading presentation of inevitability will vitiate the exercise, even where the statutory duty refers only to the draft scheme itself. No new precedent on remedies was created, but the judgment signals the Court’s willingness to issue declarations without disrupting settled schemes where disproportionate.
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