Site visitors will recall that in Hambidge (No 2) the High Court had held that the failure to consult prior to introducing changes to the charging policy was not unlawful: there had been no undertaking or indication that there would be any consultation before any changes were implemented; therefore,
no legitimate expectation of consultation had been created. Further, the existence of a review procedure through which individuals could assert their inability to pay the increase was an important factor in finding that procedural fairness was not vitiated by the lack of consultation.
A more recent ruling by the Administrative Court, at first glance, appears to contradict the reasoning in Hambidge. In Coventry City Council, ex parte Carton & others the judge said the Council’s failure to consult on what amounted to fundamental changes to the policy was also procedurally unfair.
The Council had initially introduced a change from a flat rate charge for day care services to a means tested charging system. Detailed consultation was carried out before the new charging structure was introduced, but then the Council decided, some 15 months down the line, to alter the new charging structure without further consultation. Under the original change, assessable income was reduced by an allowance for disability-related expenses; there was a buffer zone of £20 per week so that no charges were made for day care where assessable income fell below that amount; and there was a sliding scale of a percentage of care costs, against disposable income. No charges were imposed on people on means tested benefits who did not receive disability related benefits. The new scheme made no allowance for disability-related expenses. The buffer zone was reduced to £10 and the sliding scale of charges was replaced with a 40% levy on disposable income for all users with an assessable income of over £10 per week.
In each case DLA was included as assessable income, but, significantly, under the old scheme there was an individually calculated applicable amount for disability-related costs which included a standard amount of £16.40 per week for recipients of higher rate DLA. Under the newer scheme there was no automatic disregard for the night component of higher rate DLA, even though the charges claimed were for care provided during the day, and it was this that the judge found to be irrational.
The Council sought to argue that further consultation was unnecessary as the new changes were not substantial and extensive consultation had taken place in the recent past. The judge rejected this submission. The changes to the charging structure were not only significant but substantial and the Council, in conducting a thorough consultation exercise in respect of the original changes, had created a legitimate expectation of consultation.
As mentioned above, in the Hambidge case, the judge set great store by the existence of a review procedure. No point was taken on the availability of a review procedure in this case, and it may seem hard to reconcile the judge’s reasoning that the fundamental nature of the changes to the policy necessitated consultation, with the conclusion in the Hambidge case that an increase of over 200% in charges did not demand prior consultation – but as the judge in Hambidge pointed out, no undertaking or indication had ever been given by the LA that there would be consultation before any changes were made to charges, so as to give rise to a legitimate expectation.