Case No: C1/2013/3516
Neutral Citation Number: [2014] EWCA Civ 404
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT
HIS HONOUR JUDGE SYCAMORE (Sitting as a Judge of the High Court)
[2013] EWHC 4222 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 04/04/2014
Before:

THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
THE RIGHT HONOURABLE LORD JUSTICE MCFARLANE
and
THE RIGHT HONOURABLE LORD JUSTICE LEWISON
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Between:

	THE QUEEN (ON THE APPLICATION OF LH)	Appellant	
	- and -		
	SHROPSHIRE COUNCIL	Respondent	

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Ms Jenni Richards QC & Mr J Auburn (instructed by Irwin Mitchell Solicitors) for the Appellant
Ms Fenella Morris QC & Ms V Butler-Cole (instructed by Shropshire Council) for the Respondent

Hearing dates: 20th & 21st March 2014
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Judgment
Lord Justice Longmore: 
Introduction
1.	This is an appeal about the extent of consultation required when a local authority reconfigures its day care services for citizens in its area and then decides to close a day centre.  LH is 63 years old, has a learning disability, has been assessed as having substantial care needs and has been using the services of Hartleys Day Centre in Shrewsbury.  Shropshire Council (“the Council”) has decided to close that day centre as a result of its re-thinking of day centre care in the county; that re-thinking is itself a result partly of budgetary constraints and partly of encouragement from central Government to give disabled people their own personalised budget for spending in relation to their disability.  The Council contends that it consulted generally about the new system which it brought in and made clear that some day centres would close; LH contends by JL (her litigation friend and sister) that LH and others should have been consulted in relation to the closure of Hartleys itself before it occurred.  There is also an allegation of failure to comply with the statutory Public Sector Equality Duty (“PSED”) as contained in section 149 of the Equality Act 2010 (“the 2010 Act”).
2.	There is no statutory obligation to consult if day care services are withdrawn or substantially altered.  But the Council accepts that fairness does require consultation with users.  The question that divides the parties is how specific that consultation is to be.
3.	For the last 12 years LH has been living with and cared for by her sister.  She attended Hartleys Day Centre originally on 4 days a week and latterly on two days a week with two days at other centres; she has long-standing friendships with other users of the Hartleys day centre.
The Statutory Position
4.	Section 29 of the National Assistance Act 1948 provides:-
“(1) A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons aged eighteen or over who are blind, deaf or dumb, or who suffer from mental disorder of any description and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister.”
5.	Section 2 of the Chronically Sick and Disabled Persons Act 1970 provides:-
“(1) Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely –
a)	the provision of practical assistance for that person in his home;
b)	the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities;
c)	the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him;
...
then …it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29.”
The Background
6.	The Council has assumed many responsibilities for adult social care and naturally enough the way in which that responsibility is discharged changes over time.  By 2011 it was common for local authorities to be proposing personalised budgets for disabled persons in order to give them more choice as to the places and sorts of care which they could use.  At the same time, they were required by Coalition policies to make savings in their budgets.  In June 2011 Mr Stephen Chandler, Shropshire’s Director of Adult Services, prepared a paper for the Council Cabinet entitled “Transformation of Adult Social Care – Live Life Your Way”.  It is a wide ranging paper which is difficult to summarise but under the heading of “Shared Vision” it stated that the Council wanted to re-assess the current service in its entirety to bring about a fundamental change in the ways it was delivered.  Para 4.3 said:-
“Shropshire Council is committed to ensuring that it seeks out and take account of local people who use Adult Social Care Services, their families and carers, partners, stakeholders and local members.  We will look to transform the service and embark on a journey together to shift the balance of care towards personalised services in community settings to help people achieve the outcome they want and lead more independent lives for longer.”
It then set out 8 key elements of this vision in which the personalisation of budgets was given great emphasis (para 4.5).  In para 5.3 it expected that there would be a reduction in numbers of people choosing residential care thus enabling the council to reduce cost, and provide better value for money.  In relation to Day Time Opportunities it said (paras 5.5 and 7):-
“At present individuals who are identified as needing support during the day have a limited range of support available, mainly through buildings based and council run day centres.  But the current demands from users and their families are for much more than just this and we will develop a clear strategy for an improved range of future day opportunities …
This is a fundamental shift away from old traditional models of service provision, often provided directly by the Council in fixed, one size fits all ways, to new modern approaches in line with the proposed “offer” of greater individual choice.”
It also promised consultation on a revised approach to charges for day centre places.  Para 8.1 stated that the two proposals would form part of the strategy for achieving savings of about £9 million.
7.	The Cabinet of the Council (“Cabinet”) was asked to support the development of the new shared vision and approve a process of widespread consultation to develop that new shared vision.  On 29th June 2011 Cabinet decided to do just that.
8.	Throughout the summer of 2011 widespread consultation took place.  Apart from website and numerous press participations, there were 6 public events held throughout the county.  In Shrewsbury the Football Stadium was hired on 29th July 2011 and 80 people attended, including JL.  There were smaller discussion groups held in local day centres and, at Hartleys Day Centre itself, such groups met on 8th and 9th August.  About 15 parents or carers attended the second of those meetings.  Overall 600 people took part.  Slide shows or PowerPoint presentations were given setting out a number of key changes including:-
“1. Greater support for people to remain independent within their own home reducing admission to residential care”
and
“4. Improving the offer people receive in relation to day time opportunities.  This will mean fewer building based and Council run day centres, replaced by more opportunities for work and employment and access to community based activities through using personal budgets.”
9.	It is evident (as the judge found) that there was concern that day centres would close.  We were referred to comments made at the meeting on 29th July that users were not happy about closures or the alternative arrangements made.  One parent said that her son’s independence would shrink without the day centres.  She added that she was happy with the current arrangements, but was worried about what would happen when the day services had gone.  The judge referred to a further comment of 4th August expressing anxiety at closure of day centres.
10.	The key message from consultation, as reported to the Council on 19th October 2011, emphasised that day centres were important for socialising and independence but also that there was a desire to move away from building based services.  There was a particular concern that day centres should be modernised and made more inviting.
11.	As a result of all this Mr Chandler prepared an Adult Care Strategy Implementation and Action Plan which was approved by Cabinet on 14th December 2011.  It was thought that it would make a significant contribution to the desired savings of £9.65 million but did not propose any closure of day centres at that time.
12.	In pursuance of this policy of personalisation of adult social care services, a further paper was presented to Cabinet recording that the Council had been told to “move away from building based services” and to prioritise (inter alia) “offering variety, not just day centres”; it recommended a further period of consultation on both the personalisation of day time support (Strand 1) and what it referred to as the extension of a fair charging policy to users of that day time support (Strand 2).  Cabinet adopted these recommendations on 7th March 2012.  
13.	This second consultation again consisted of a number of events and activities the majority of which were attended by Mr Chandler, many of which were at day centres.  They included a PowerPoint presentation and a question and answer leaflet.  Over 300 people were consulted including more than 150 service users.  Mr Chandler recalls saying that one of the consequences of greater use of personalisation to transform day time support would be a reduction in the use of day centres as they were currently configured and that if day centres no longer provided the sort of support sought by individuals, they would close.  Examples of the questions asked in the leaflet and the Council’s answers to those questions are:-
“Q. Is my service closing?  [opposite a picture of a day centre with a large question mark]
A As more people do things differently we will need less buildings.
…
Q. Are the buses going?
A. If there are less buildings there will be less buses.
Q. How are services changing?
A. Day centre buildings will be for people with the highest need.
…
Q. How can I stay safe if things change?
A. We will plan with you how this will happen.
…
Q. Can I go back to the day centre if things don’t work out?
A. This may not be possible but we will help you to find something that works better.”
Neither LH nor her sister attended any of these meetings or presentations.
14.	Feedback from this consultation under the heading “where are we now?” was recorded (inter alia) as follows:-
“1. Change is difficult for people who have been using a traditional service for a long time – the centres form a central part of people’s lives.
2. Day services are really important for meeting up with friends and maintaining relationships.
3. Staff/day centres are perceived as the “safest place”, they are trusted and provide an important support network.
4. Day centres help people learn new skills and provide something different to do - people would be bored if they were at home all day.
5. Day centres provide important respite for carers.
6. People are comfortable and familiar with the day centres; there is a fear of change (enhanced by a lack of clarity on what is happening/changing).
7. There is inconsistency in what people are charged/are paying.
8. Staff have ideas about how to develop their service but feel they need support and advice to do this.
9. Lack of things to do outside of centre opening hours.”
15.	In September 2012 a report was made to Cabinet on what was called the “personalisation consultation”.  Strand 1 called “Personalisation and day time support” contained this:-
“7.2.6 It is important to note that the shape and function of day services may look different after the process of personalisation, and this depends very much on the choices individuals make about their support.  A result of individuals increasingly choosing to use community facilities through their personal budgets may be a reduction in demand for, and consequently, the number of day centre bases.  It would not be economically viable to sustain the current number of places whilst individuals are choosing to access a wider variety of employment, leisure and social opportunities in the community.
7.2.7 There will, however, still be a need for many day services, especially those centres which provide a unique service and for individuals with higher levels of need, making access to community services more difficult.  In addition, the transformation of day services does not mean that individuals cannot actively choose to stay in day centres; however, the way in which these services are provided and their location may be different from the present model.”
Cabinet was asked to note the consultation feedback, support the use of personalisation and personal budgets and approve the inclusion of day services in the fairer charging policy.  It did so on 12th September 2012.  
16.	It was at this stage that LH began to use other day centres on two days a week but continued using Hartleys on two other days of the week.
17.	A proposed reconfiguration of day centre services was then drawn up for submission to the relevant decision making authority referred to as “the portfolio holder”.  All 17 day centres in Shropshire were listed in a Day Service Transformation Plan.  Some would continue to exist in much their present form; three (including Hartleys and Sabrina Court, both in Shrewsbury) were designated as ceasing to provide day services, with existing users attending another building based service, if needed.  It was recognised that the reconfiguration of services, being part of the Council’s change of policy (to becoming a commissioning Council whereby individuals as personal budget holders could, within their personal budgets, meet their own individually assessed needs) required an Equality Impact Needs Assessment (“EINA”).  This was provided on 24th July 2013 by the Head of Social Care: Improvement and Efficiency, Ms Ruth Houghton.  The impact of the policy on persons with a disability was assessed to be Medium with the following comment:-
“the existing in house day services support adults with learning disabilities who will be supported to access alternative means of support using personal budgets.”
In the light of the fact that the impact was “medium” rather than “high”, no further assessment was required and the report to the portfolio holder said (para 5.3.1).
“The transformation of day services through a personalised approach will ensure individual needs are met in a tailored and individual way.”
18.	Meanwhile the local press discovered that closures might be imminent.  The Shropshire Star of 15th July 2013 had an article under the headline “Closure threat for Shropshire day centres” which mentioned Sabrina Court in particular as under threat.  The proposed transformation plan was published on about 25th July.  Both it and the EINA were then put before the portfolio holder for Adult Services who implemented that plan on 1st August 2013, save that one of the day centres due to be closed (Innage Lane in Bridgnorth) was temporarily reprieved.  The decision to close Hartleys is now challenged as having been reached without requisite consultation and without due compliance with the PSED contained in the 2010 Act.  Both these contentions were rejected by HH Judge Sycamore sitting as a Deputy Judge of the Administrative Court in Manchester who found as a fact (para 21) that the public did understand that day centres would close.  There is now an appeal to this court.
Submissions
19.	These ranged extremely widely but in broad terms Ms Jenni Richards QC for LH submitted:-
i)	common law requires an administrator to act fairly if a benefit (such as the provision of a day centre) is to be withdrawn or substantially changed;
ii)	that duty of fairness requires consultation with those using the centre and their carers;
iii)	the service of Hartleys Day Centre was a benefit which was to be withdrawn and there should therefore have been a consultation with interested users and their carers in relation to that day centre;
iv)	such consultation had to be in relation to a specific proposal for closure and not in relation to a generic proposal for reconfiguration of Shropshire’s Adult Day Services as a whole;
v)	no proposal was ever put before interested parties such as LH (or her sister) for them to comment on;
vi)	no consultation took place and the decision to close Hartleys was therefore unlawful; and
vii)	there should be a declaration to that effect and the Council should be required to open (or re-open) the question whether Hartleys should close and hold a proper consultation on the question.
20.	Equally broadly Ms Fennella Morris QC submitted:-
i)	the Council rightly consulted on a number of questions in 2011 and again in 2012 including the move to personalisation of adult day care, whether users should be charged and the extent to which day centres were continuing to have a useful function;
ii)	it was clear to consultees that day centres would have to close as a result of the reconfiguration of services, fewer persons using day centres, the need to charge for services or for other reasons;
iii)	once both consultations had been held, it was unnecessary then to hold subsequent consultations in relation to particular day centres which it was thought necessary or desirable to close;
iv)	in any event the method chosen for consultation was for the Council and could only be attacked on Wednesbury grounds;
v)	the decision of August 2013 was an integrated decision relating to adult day services in Shropshire as a whole and it was not right to put one particular part of that decision under a microscope and hold that it was unlawfully reached; and
vi)	no relief should be granted or, if any of Ms Richards’ arguments were right, only a declaration rather than any mandatory order, since Hartleys had now closed and the staff had left.
Consultation on what?
21.	In the absence of any express or implied statutory duty to consult, the obligation to consult stems from the expectation that a public body (such as a local authority) making decisions affecting the public will act fairly.  If therefore a local authority withdraws a benefit previously afforded to the public, it will usually be under an obligation to consult with the beneficiaries of that service before withdrawing it.  That obligation requires that there be a proposal, that the consultation takes place before a decision is reached and that responses be conscientiously considered.  The question at the heart of this appeal is whether a proposal for reconfiguration of services provided to adult users which makes clear that some (as yet) unidentified day centres are going to have to close is a sufficiently concrete proposal to put out for consultation or whether, consultation in relation to that reconfiguration having occurred, it is necessary for the local authority to mount a fresh consultation in relation to any individual day centre which it seeks to close.
The Law
22.	The requirement at common law of consultation if public services are to be withdrawn was recognised in R v Devon County Council, ex parte Baker [1995] 1 All E.R. 75.  The case related to the closure of residential care homes in Devon and in County Durham.  In Devon there had been a reconsideration of residential home provision and the residents of the homes had been consulted.  The main question was whether letters sent to the residents after that initial consultation raised an expectation that there would be further consultation on closure or only on relocation.  In the County Durham case there had been a draft community care plan which made no reference to the closure of individual homes and the residents only had 5 days’ notice that their particular home was to close.  The court held that the issues relating to the closure of the Devon homes had been fully ventilated and the residents’ case for further consultation had to be dismissed; in the case of the Durham closure, however, the residents had not had time to make representations about or objection to the proposed closure.  Judicial review was accordingly granted.
23.	Dillon LJ (page 83c) said that the essentials of consultation in the context of residential homes were:-
“1. that the residents should have known that closure of the homes was under consideration well before the final decision to close them was made;
2. that the residents should have had a reasonable time to put to the Council their objections to the closure of the homes; and
3. that the residents’ objections should have been considered by the Council.”
He then concluded in the Durham case that 5 days’ notice was not sufficiently early notice that closure was under consideration nor did it give long enough for affected persons to make representations.
24.	Simon Brown LJ agreeing (page 91e-f) said:-
“… five days’ notice of the proposed closure of Ridgeway House gave the residents wholly insufficient opportunity to make such representations as they would have wished to make in favour of their house being kept open in preference to others.  I do not say that they needed to be consulted individually.  Nor do I say that they needed to be informed of anything like the entirety of the material which would clearly be relevant to the Council’s eventual overall decision.  It would have been sufficient to consult the body of residents as a whole, notifying then of the need to close a proportion of the county’s homes and inviting them to indicate what particularly they saw as the merits of their home and what reasons they would wish to advance for its retention in preference to others.”
He added that he was not to be taken as diluting the requirements of consultation as adopted by (inter alia) Hodgson J in R v Brent London Borough Council, ex parte Gunning (1986) 84 L.G.R. 168.  These requirements were essentially those adopted by Dillon LJ as set out above, with the addition of a requirement to give reasons for the proposal.  Farquharson LJ agreed with both judgments.
25.	If, therefore, this case had been concerned with residential homes a consultation along the line proposed by Simon Brown LJ would have been required.  Despite the extensive consultations arranged by the Council in 2011 and 2012, there was never at those stages a proposal to close any particular day centre.  If, before closure of a residential home is implemented there has to be consultation in relation to the closure of that home, is it any different if a day centre is to be closed?  For my part, I cannot see any distinction of substance.
26.	Although closure of a residential home is clearly more serious than closure of a day centre and, although it can be said that the closure of Hartleys does not amount to an outright withdrawal of a service because the Council will discuss with users alternative courses of action which are available within their personalised budget, closure of day centres is undoubtedly a serious step to take from the perspective of their users and those who care for them.  For the carers, the day centre will always afford a welcome respite.  Even in the Devon and Durham case there was not an outright withdrawal of the service since residents would be accommodated in other homes.  In all the circumstances I can see no satisfactory distinction between this case and that case.
Method of consultation for Council?
27.	Ms Morris submitted that it was for the Council to choose what method of consultation to use and the court should not second-guess that choice unless it was unreasonable in an AP Picture Houses v Wednesbury sense.  She referred us to R (Wainwright) v Richmond Upon Thames London Borough Council [2001] EWCA Civ 2062 (a case where the duty to consult was implied from a statutory provision) in which Clarke LJ, with whom the other members of the court agreed, set out the underlying principles as to the extent of the duty to consult as derived, again, from R v Brent London Borough Council, ex parte  Gunning as somewhat elaborated by McCullough J in R v Camden Borough Council, ex parte Cran (1996) 94 L.G.R. 8,38.  Clarke LJ then said (para 11):-
“They do not, however, provide a complete answer to the question which arises for decision in this case.  Thus, they do not address what is the necessary extent of the notification or consultation required in order to discharge the duty.  As McCullough J pointed out, all will depend upon the circumstances.  For example, a national project with wide implications for society as a whole will require far more extensive consultation than the installation of a pedestrian and cycle crossing.  Provided that the notification and consultation satisfy the principles set out above, it appears to me that council must have a comparatively wide discretion as to how the process is carried out.  The council cannot be in breach of duty unless the extent of the consultation process is carried out.  The council cannot be in breach of duty unless the extent of the consultation process was such as to be outside the ordinary ambit of its discretion.  In short, in order to be unlawful the nature and extent of the process must be so narrow that no reasonable council, complying with the principles set out above, would have adopted it.”
So, said Ms Morris, if the Council chose to consult about future closures in the way that this Council did, the court should not interfere.
28.	Any assessment of this submission must have regard to the source of the common law duty to consult.  In the Devon and Durham case Simon Brown LJ derived the duty from authorities on legitimate expectation.  He pointed out (89b-d) that it was superfluous and unhelpful to say that there is always a legitimate expectation that a public body will act fairly because one must first have some idea of the circumstances in which a public authority has a duty to act fairly.  He defined this by reference to what he called the second broad category of legitimate expectation at 88h-89a:-
“2) Perhaps more conventionally the concept of legitimate expectation is used to refer to the claimant’s interest in some ultimate benefit which he hopes to retain (or, some would argue, attain).  Here, therefore, it is the interest itself rather than the benefit that is the substance of the expectation.  In other words the expectation arises not because the claimant asserts any specific right to a benefit but rather because his interest in it is one that the law holds protected by the requirements of procedural fairness; the law recognises that the interest cannot properly be withdrawn (or denied) without the claimant being given an opportunity to comment and without the authority communicating rational grounds for any adverse decision.”
He then asked himself (90e) what the touchstone was by which such interests can be identified, referred to the speech of Lord Diplock in Council of Service Unions v Minister for the Civil Service [1985] A.C. 374,408 and continued (90 h-j):-
“Thus the only touchstone of a category 2 interest emerging from Lord Diplock’s speech is that the claimant has in the past been permitted to enjoy some benefit or advantage.  Whether or not he can then legitimately expect procedural fairness, and if so to what extent, will depend upon the court’s view of what fairness demands in all the circumstances of the case.  That, frankly, is as much help as one can get from the authorities.”
From this it emerges that the duty to consult will arise when a person has an interest which the law decides is one which is to be protected by procedural fairness.  Dillon LJ’s reference (85f) to the observations of Deane J in Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 93 A.L.R. 51, 52-3 together with his own remarks about fairness (86e-g) show that he essentially agreed with this analysis.
29.	Once one appreciates that this is the source of the common law duty to consult, it must be apparent that not only is the question whether LH had an interest entitled to be protected by procedural fairness a question for the court but so also is the question whether the procedure adopted by the Council was a fair procedure.  Fairness is a matter for the court not the Council to decide.  If fairness requires the Council to consult about individual closures, then the Council cannot say that it can choose a method of consultation which by-passes the question whether an individual day centre should be closed.
30.	Having said that I would, for my part, accept that provided the Council consults with the staff, users and relatives of a particular day centre which is to be closed, the extent to which the Council may choose to consult more widely e.g. with the staff, users and relatives of other day centres in the country is essentially a matter for the Council.  No doubt, if consultation with users of one day centre led to the conclusion that that day centre would not close but that another would, there would a duty to consult the users of that other day centre.  But save to that extent, the principle enunciated by Clarke LJ may well be applicable, as I think Simon Brown LJ would accept in the light of what he said at page 91e-f in the Devon and Durham case.
Conclusion on Consultation
31.	In some ways I regret having to come to this conclusion, differing as I do from the judge (who may not have been referred to the detail of the Devon and Durham case), because it is clear that Shropshire has taken a great deal of trouble to explain its reconfiguration of Adult Day Care and, in particular, the application of personalised budgets.  The consultations undertaken in that respect were, as I have said, wide-ranging and, no doubt expensive and time-consuming to conduct.  It has only mistaken its obligations at the last stage but, in the light of the law as I understand it to be, my own conclusion is that the omission to consult the users and relatives on the closure of Hartleys Day Centre before it was decided to close it was indeed unlawful.
Public Sector Equality Duty
32.	In the light of the conclusions already reached, I can deal with this quite shortly.  Section 149 of the Equality Act 2010 provides:-
“1) A public authority must, in the exercise of its functions, have due regard to the need to –
a)	eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
b)	advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
c)	foster good relations between persons who share a relevant protected characteristic and persons who do  not share it”
33.	Thus the need to eliminate discrimination of the disabled, to advance equality of opportunity between persons having a disability and those not having a disability and to foster good relations between disabled and non-disabled persons are all matters to which the Council “must have due regard”.  The services provided by the Council and the widespread consultations that took place in relation to the reconfiguration of Adult Day Care services show that the Council did have due regard to their duty in this respect.  The Head of Social Care provided an Equality Impact Needs Assessment and was in my view entitled to take the view that individual needs would be met in a tailored and individual way.  The Portfolio Holder was entitled to rely on that assessment.  It cannot be said that the needs of the disabled were not at the forefront of the Council’s minds any more than it could be said the needs of the disabled were not at the forefront of the relevant government department when it introduced the bedroom tax, see R (MA) v Secretary of State for Work and Pensions [2014] EWCA Civ 13 paras 91 and 92.  As Lord Dyson MR said:-
“The PSED challenge is not concerned with the lawfulness or even the adequacy of the solution that was adopted.  It is only concerned with the lawfulness of the process.”
34.	It may, of course, be said that because there was a failure to consult about the closure of Hartleys that shows there was a failure to comply with public sector equality duty.  If so, the second failure adds nothing to the first failure.  But for the reasons given I do not think there was any wider failure than that.  If I had held that the Council had complied with their duty to consult at common law, I would not have held that there was a breach of the statutory duty under the Equality Act.
Relief
35.	Ms Richards for LH contends that the decision to close Hartleys Day Centre must be quashed and that a consultation about its closure should now take place.
36.	On 23rd October 2013 the Council undertook, pending the hearing before HHJ Sycamore, not to close the day centre or take irrevocable steps towards its closure save that the Council was entitled to act on staff acceptances of voluntary redundancy already made and individuals were to be entitled to take up new services elsewhere than at the centre.  This undertaking lapsed once His Honour Judge Sycamore made his order on 27th November and no application was made for interim relief either to him or to Maurice Kay LJ when he granted permission to appeal.  We were informed that the centre has now closed and all the staff dispersed.  In these circumstances I do not consider that it would be consonant to good administration now to quash the closure decision or to order the Council now to conduct a consultation about its closure, when the only purpose of so doing would be to enable it to consult people, who are not now using it.  That would be an expensive and over-legalistic exercise which justice to LH does not require especially as there is no reason to suppose that the Council is not performing its duty to assist LH to find alternatives to Hartleys within her personalised budget.
37.	Ms Morris submitted that it would be likewise over-legalistic (and also pointless) to grant any remedy at all, even a declaration that the Council had acted unlawfully in failing to consult.  The terms of the reasons for our judgment would be enough.  I disagree.  Having concluded that the Council’s failure to consult did result in them acting unlawfully, the least that the court should do is to declare formally that this was the case.
38.	I would therefore allow this appeal and (subject to any written observations from the parties on the terms of the declaration before hand down) formally declare that, in breach of its common law duty, the Council failed to consult the users of Hartleys Day Centre and their carers before deciding to close the centre.
39.	At the conclusion of the hearing, the court announced that it would make no order on either party’s application to adduce further evidence.  That should also be incorporated into the order of the court.
Lord Justice Lewison:
40.	I agree.
Lord Justice McFarlane
41.	I also agree.