Make plans crystal clear
Landlords face needless court action if they fail to consult tenants properly, says Robert Wassall, head of social housing at Blake Lapthorn
It is established law, and surely a matter of common sense, that if a consultation is carried out it must be carried out properly. As such, it is surprising how often this does not happen.
In a recent case, R v Sefton Care Association, Sefton Council had told care home providers that it would not increase the fees it paid for people placed in the home for the following financial year. When it later faced cuts in its central government funding, the council decided that savings could be made by freezing fees for a further year, despite Sefton Care Association having told the council that it was underfunding its placements and that fees would need to rise.
Duty of care
The court decided that Sefton Council was under a duty to consult the care home, that there had been no consultation (in any meaningful sense) because the council had not communicated its proposal ‘at a formative stage’, had not initiated any dialogue with the providers about it, and had not engaged with them about their concerns. Rather, the providers had been faced with a fait accompli.
There were at least 12 other reported cases involving councils in England in 2011. In each, the decision to do something (often to reduce or abolish a service), was challenged by judicial review, usually (but not always), successfully.
Ward against action
These challenges followed two significant cases involving resident wardens in supported housing in 2009. In the first, Garbet v Circle 33 Housing Trust, the housing association decided to discontinue its resident warden service. The High Court pointed out that the landlord was contractually obliged to consult tenants on these changes but had failed to do so within the timescale required.
Also in 2009, in the case of R v Portsmouth Council, the local authority wanted to withdraw resident wardens from its sheltered housing schemes. It sent a letter to all those affected by its proposals, listing the dates of meetings to be held to talk about the proposed changes. The High Court decided that this letter gave the impression that the meetings would only be an opportunity to ask questions about a change which had been decided upon; there was not a ‘do nothing’ option; there were no serious alternatives; the concerns of the residents were unimportant. In addition, the court decided six to 11 days’ notice of meetings gave insufficient time for residents (particularly those with disabilities), to seek advice and/or to provide a meaningful response.
It is important to appreciate that, in these cases, what is actually being challenged is the way a decision has been made - not the merits or even the consequences of the decision.
To prevent another year of these time-consuming and expensive challenges, social landlords should bear in mind that consultation is about asking what people think about a proposal and feeding back what will happen as a result of that proposal. The consultation should be undertaken with those who will be affected by what is being proposed, (the customer of the service that is being altered). Consultation can take many forms and should be ‘customised’, to ensure it is user-friendly to the customers concerned.