Are consultations on cuts doomed to tokenism?

Campaigners say care users are not being given a say in cuts to their services, but councils risk legal action if they fail to consult properly on their plans. Vern Pitt reports

What is the cost of poor consultation? For London Councils, an umbrella organisation for London’s 33 local authorities, it could be significant. The organisation’s plan to cut £9m from its grants to third sector providers in 2011-12 was overturned last month by a judicial review, which found it had failed to adequately take account of the impact of its decision on disadvantaged groups. It must now re-run the consultation, was ordered to pay 60% of the claimant’s costs and is facing calls from voluntary sector leaders to increase its grants budget for 2011-12.

Many recipients of social care do not have the power or resources to challenge poor consultation exercises, however. The cost to them can be more than financial; it can mean a significant drop in quality of life.

Since the comprehensive spending review last October, many councils have sought to cut the level of social care they offer and increase income from users through charges. “The feeling is that councils have taken decisions and are merely going through the process of consultation without genuine options on the table,” says Neil Coyle, chair of the Coalition on Charging (CoC), a group of charities that campaigns against charge hikes.

Rhion Jones, programme director at the Consultation Institute, which runs training in consultation skills, agrees this is the trap that government bodies often fall into.

When Poole Council launched a consultation on raising charges for care and restricting eligibility criteria last autumn, the CoC complained that the authority’s documents lacked enough detail for respondents to reach an informed conclusion, its questions were loaded and it presented proposals as a fait accompli. CoC pointed out that one question simply posed a statement that “it’s right to charge people who can most afford to pay and limit services to those in greatest need” before asking for comment.

Eligibility thresholds

The council accepts that service users and the public were not asked whether the council ought to raise charges or eligibility thresholds, but how the policies should be implemented. However, it says the consultation documents were drawn up with service users, that questions were not loaded but worded to elicit a balanced response, and that changes to the policy had been made off the back of the consultation.

But Jones is sceptical about consultations of this type. “[They are] almost always a poor consultation because there are no choices. If I saw one of those I would start off with the expectation it is a tick-box exercise,” he says.

Even when the councils consult on a broad selection of options for the future of services there can be problems. Norfolk Council recently completed a large consultation on councils cuts, including proposals to tighten eligibility criteria for adult social care – an option it later rejected.

Disability groups claim that the council did not do enough to include them in the process. “The consultation starts with the premise that everything is going to completely change,” says Kate Jones, community development officer for Mencap in Norfolk. “That’s such a massive concept to get across to people with a learning disability. The amount of time, the timing and the lack of specialist ways of explaining things meant it wasn’t a real consultation.”

Mark Harrison, chief executive of the Norfolk Coalition of Disabled People, agrees: “For the first consultation in Great Yarmouth they didn’t have any accessible versions of the consultation documents and it was only by the third that they had an easy-read version. They were rushing the consultation without the materials.”

Accessible versions

Council leader Derrick Murphy says the authority sent out accessible versions on request. The consultation was launched in October after the comprehensive spending review, and Murphy accepts that it was unfortunate that it fell over the Christmas period, limiting opportunities to reply.

Jones’s experience is reflected in neighbouring Lincolnshire, where last autumn the county council held a consultation on increasing charges for day care.

“A quarter of the people who returned the questionnaires didn’t understand what they were being asked. That was the area where we needed to learn lessons from,” says Matthew Fisher, performance and ­quality business modernisation manager for the council’s adult social care department.

Lincolnshire Council has also pledged to include more face-to-face methods. Rhion Jones applauds this approach, saying UK organisations are too reliant on quantitative data from mail-out questionnaires, which makes it impossible to pull together a representative sample.

He hopes the budgetary pressures facing councils will improve the standard of consultation exercises. “The scale of the crisis is such that it has obliged some councils to do it properly for the first time,” he says.

Doing it incorrectly can result in a legal challenge and potentially hefty costs, as London Councils has found.

Hampshire Council in December launched plans to close eight day centres for people with learning disabilities. Local campaigners have so far been impressed with how the consultation has been handled.

Michaela Whitaker, Mencap’s community development officer in the area, applauds the council for paying for advocacy support where needed, putting out early and high-profile public messages on the changes and setting up 25 separate stakeholder meetings across the county.

The format of these meetings has also made a difference, says Felicity Hindson, executive member for adult social care: “The events have a marketplace style. Although this model is more resource-intensive than a traditional event, it has proven more constructive for all concerned, particularly those carers who are not confident enough to speak in front of others.”

It has also published localised synopses to explain the effects of the broader proposals for each community.

Whitaker hopes the presence of senior staff at face-to-face events will make a difference in having clients’ voices heard.

“Giving someone the opportunity to tell a commissioner why they are worried or concerned or why they are excited by the idea is a lot more powerful than myself going along and representing people,” she says.

Councils’ legal duties

To be lawful, a decision must adhere to both the requirement of statute and the requirements set out by the courts when they have been asked to interpret statute, writes Chris Fry, managing partner at Unity Law.

The court will consider the following when ruling on the legality of a decision:

● Is there a breach of a council’s duty of care?

● Have all relevant matters been considered? Could the decision have been reached taking into account irrelevant information?

● Is there irrational decision-making or failure to consider the law?

● Is there a failing to meet legitimate expectations?

● Has the council failed to give reasons?

● Is there a failure to comply with the Human Rights Act?

An individual can ask the Administrative Court to review a decision-making process through judicial review.

Often, simply pointing out to the council that an assessment or consultation is missing or inadequate corrects the problem without recourse to the courts.

If it seems there’s nothing to be done, legal advice should be taken quickly because there is a strict three-month timescale to ask the court for a judicial review.

Chirs Fry, managing partner at Unity Law

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