Summary of Court of Appeal (Civil Division) Opinion

Factual and Procedural Background

This is an appeal from a decision of Judge Burns (sitting as a Deputy High Court Judge) dismissing a judicial review claim by Appellant (a protected party represented by his litigation friend) against Company A concerning the decision to close an adult education site ("the Centre"). The Appellant sought quashing of Company A's decision dated 22 January 2025 to close the Centre, primarily on the ground that Company A had unlawfully failed to consult learners with learning difficulties and disabilities (LLDD) who used the Centre.

The judge below found there had been an unlawful failure to consult the Appellant but applied section 31(2A) of the Senior Courts Act 1981 and concluded it was highly likely the outcome would not have been substantially different, dismissing the claim for relief. The judge also dismissed a claim under the public sector equality duty (PSED) (section 149 Equality Act 2010) and found no breach of the Tameside duty to make adequate inquiries. The judge made no order as to costs. The Appellant appealed the application of section 31(2A), the dismissal of the PSED claim, and the costs order. Company A cross-appealed the finding of a duty to consult and the extension of time for bringing the claim.

Key factual context: the Centre (one of two adult education sites operated by Company A) served LLDD users, including the Appellant who had attended for many years; Company A conducted an operational property review and option appraisals (multiple options considered, including retaining, refurbishing, or disposing of the Centre, and relocating services to "the Other Centre" and satellite "spokes"); an Equality Impact Assessment (EIA) was prepared identifying 99 LLDD users and accessibility concerns; Company A resolved in January 2025 to progress disposal of the Centre and communicated the planned closure in April 2025. The judicial review claim was commenced on 30 July 2025.

Legal Issues Presented

1. Whether the judge was wrong to grant an extension of time for bringing the judicial review claim.
2. Whether Company A owed a common law duty to consult LLDD users of the Centre prior to the decision to close it.
3. Whether the judge erred in concluding there was no breach of the public sector equality duty (section 149 EA 2010), including whether material not before the decision maker was relied upon.
4. Whether the judge erred in applying section 31(2A) of the Senior Courts Act 1981, particularly in finding it highly likely the outcome would not have been substantially different absent the failure to consult.
5. Whether the judge erred in making no order as to costs.

Arguments of the Parties

Appellant's Arguments

• Attorney Burton submitted the judge should not have applied section 31(2A) to conclude consultation would not have affected the choice among multiple potential options for the Centre; the views of LLDD users could have led to a different option being chosen.
• The Appellant argued the PSED had not been breached because material before the court indicated relevant matters were not considered by the executive.
• On extension of time, counsel argued the decision was not effectively communicated before April 2025 and the claim was brought promptly thereafter.

Respondent's Arguments

• Attorney Beglan and Attorney Sirica submitted Company A's strategic operational review and expert involvement demonstrated that disposal of the Centre (option six) was the only viable option and that consultation would have been unlikely to change the outcome.
• Company A relied on the strategic nature of the review and budgetary/housing pressures to justify not consulting the wider community in the same way.
• On delay, Company A contended the decision date was January 2025 and questioned whether extension of time should have been granted.

Table of Precedents Cited

Court's Reasoning and Analysis

The court (Judge Dingemans, with agreement from Judges Whipple and Baker) analysed the issues as follows:

• Extension of time: The court accepted the judge below was entitled to grant an extension. The decision date was 22 January 2025 but the decision was not communicated to LLDD users before the three-month limit had expired; confusion in correspondence meant the claim could not realistically have been commenced earlier. The judge correctly weighed CPR 54.5, CPR 3.1(2)(a) and section 31(6) Senior Courts Act 1981 and found no substantial hardship or prejudice from the relatively short delay.
• Duty to consult: Applying authorities (including R(Moseley), ex parte Coughlan, Bhatt Murphy, ex parte Baker and R(LH)), the court held a common law duty to consult arose. The class affected was a small, readily identifiable group (99 LLDD users and their carers), the Centre was central to many users' lives, and fairness required consultation because users had a legitimate expectation to be consulted before closure.
• PSED: The court found the executive had been provided with an EIA that recognised potential impacts on LLDD users (accessibility, longer travel, disruption) and that the executive had due regard to equality considerations. The court rejected the argument that the judge below relied on material not before the decision maker in a manner undermining the PSED conclusion.
• Section 31(2A): The court explained the statutory "highly likely" threshold is high and cautioned against assessing merits. Applying the test to the facts, the court concluded the materials did not permit a finding it was highly likely consultation would have made no difference; while it might be probable the same decision would follow, that fell short of the required threshold. Therefore relief could not be refused under section 31(2A).
• Costs: Because the court allowed the appeal and quashed the decision, the correctness of the judge below's decision to make no order as to costs did not require determination.

Holding and Implications

HOLDING: The court allowed the Appellant's appeal and dismissed Company A's cross-appeal. The decision to close the Centre is quashed.

Implications:

• Company A must carry out a consultation with LLDD users of the Centre and their carers before deciding whether to close the Centre. Any consultation must be conducted in accordance with the Gunning principles.
• The court did not conclude it was highly likely Company A would reach a different decision following consultation; it held only that it could not say it was highly likely the same outcome would have resulted. The direct effect is that the prior decision is quashed and a lawful consultation must proceed before any further decision on closure.
• The opinion applies established principles rather than announcing a novel rule; it emphasises fact-specific application of duties to consult, the high threshold in section 31(2A), and the PSED requirements.