It’s quite easy to think that every problem can be solved by providing the right service. If you talk people who experience that problem, it sometimes becomes clear that a new or revised service isn’t the answer. Effective solutions cannot be designed without understanding the people who are living through what we are trying to fix.
In North East Lincolnshire we have made a commitment talking, listening and working together at every stage of design and delivery.
It is not only the right thing to do, there are also specific legal requirements for public sector organisations to consult, inform, involve, and engage with communities and stakeholders as part of their decision-making processes.
There are many different types of engagement, informal and formal consultation and this guide is to help you to understand the approach that is needed for your activity.
The legal bit
When a public body carries out consultation, it must do this lawfully. The Gunning Principles for public consultation were proposed in 1985 by Stephen Sedley QC and accepted by the judge in the Gunning v LB of Brent case. They consist of four rules, which, if followed, are designed to make consultation a fair and a worthwhile exercise. These are:
1. Proposals are still at a formative stage
A final decision has not yet been made, or predetermined, by the decision makers – you cannot have already made your mind up
2. There is sufficient information to give ‘intelligent consideration’
The information provided must relate to the consultation and must be available, accessible, and easily interpretable for consultees to provide an informed response
3. There is adequate time for consideration and response
There must be sufficient opportunity for consultees to participate in the consultation. There is no set timeframe for consultation as the length of time given for consultee to respond can vary depending on the subject and extent of impact of the consultation.
4. ‘Conscientious consideration’ must be given to the consultation responses before a decision is made
Decision-makers should be able to provide evidence that they took consultation responses into account
If a public body says that it is going to engage with people in a certain way about decisions, it is known as the ‘Doctrine of Legitimate Expectation’ and, if they fail to do so, they are in breach of the law. For more information visit https://www.pinsentmasons.com/out-law/analysis/legitimate-expectation-as-a-ground-for-judicial-review-#:~:text=At%20its%20most%20basic%2C%20a,if%20necessary%2C%20through%20the%20courts.
Talking, Listening and Working Together (TLWT) means that local people now have a legitimate expectation that the principles set out in the commitment will be followed.
The Equality Act 2010 came into force on 1st October 2010 and promotes fair treatment of people regardless of any protected characteristic they may have.
The Equality Act 2010 (Specific Duties) Regulations 2011 came into force on 10 September 2011. These require public bodies to publish relevant, proportionate information demonstrating their compliance with the Equality Duty and to set themselves specific, measurable equality objectives.
Public Sector Equality Duty (PSED)came into force in April 2011. It means that public bodies must consider all individuals when carrying out their day-to-day work – in shaping policy, delivering services and in relation to their own employees.
It also requires that public bodies have due regard to the need to:
- eliminate discrimination
- advance equality of opportunity
- foster good relations between different people when carrying out their activities
How to evidence ‘Due Regard’
Case law sets out broad principles about what public bodies need to do to have due regard to the aims set out in the general equality duties. The ‘Brown principles’ set out how courts interpret these duties. For more information about the Brown Principles and the PSED, visit: Public Sector Equality Duty: DCLG Equality Objectives – 2012-2016 (publishing.service.gov.uk)
- Decision-makers must be made aware of their duty to have ‘due regard’ and to the aims of the duty.
- Due regard is fulfilled before and at the time a particular policy that will or might affect people with protected characteristics is under consideration, as well as at the time a decision is taken.
- Due regard involves a conscious approach and state of mind. A body subject to the duty cannot satisfy the duty by justifying a decision after it has been taken.
- Attempts to justify a decision as being consistent with the exercise of the duty, when it was not considered before the decision, are not enough to discharge the duty.
- General regard to the issue of equality is not enough to comply with the duty.
- Must be exercised in substance, with rigour and with an open mind in such a way that it influences the final decision
- Must be integrated within the discharge of the public functions of the body subject to the duty. It is not a question of ‘ticking boxes’.
- Cannot be delegated and will always remain on the body subject to it.
It is good practice for those exercising public functions to keep an accurate record showing that they had considered the general equality duty and pondered relevant questions. If records are not kept it may make it more difficult, evidentially, for a public authority to persuade a court that it has fulfilled the duty imposed by the equality duties.
To ensure that you have ensured ‘Due Regard’, please see the Equality and Diversity section of this toolkit.
There are a variety of policies and guidance documents which set out the principles, context and benefits for public bodies involving communities and service users.
- Cabinet Office Consultation principles, 2018 sets out the principles that Government departments and other public bodies should adopt for engaging stakeholders when developing policy and legislation
- Patient and Public Participation in commissioning health and care – statutory guidance for Clinical Commissioning groups and NHS England and Involving people in their own health and care: statutory guidance for clinical commissioning groups and NHS England, 2017 set out the context, benefits and principles of involving people in health and care, the relevant legal duties and key actions for CCGs and NHS England. CCGs were stood down on July 1 2022. Integrated Care Boards (ICBs) took on their statutory role but the guidance currently still stands.
- Legal Duties for Service Change, 2020 is a guide that has been developed for those considering, and involved in, NHS service change to help them navigate the common legal and policy issues from the very start of a service change programme through to decision-making. This includes NHS commissioners and providers, as well as Integrated Care System (ICS) and Sustainability and Transformation Partnership (STP) leads and partners.
- Framework for patient and public participation in public health commissioning, 2017. describes how NHS England involves patients and the public in the commissioning of public health services.
- Framework for patient and public participation in primary care commissioning, 2016. as a guide for primary care commissioners to strengthen patient and public participation in NHS England primary care commissioning
- Accessible Information Standard, 2016. all organisations that provide NHS care and / or publicly funded adult social care are legally required to follow the Accessible Information Standard.
- Best Value Duty, 2011. Authorities should consider overall value, including economic, environmental, and social value, when reviewing service provision
- Equality and Delivery Systems for the NHS (EDS2), 2013 to help local NHS organisations, in discussion with local partners including local people, review and improve their performance for people with characteristics protected by the Equality Act 2010. By using the EDS, NHS organisations can also be helped to deliver on the public sector Equality Duty (PSED).
Different work areas across the public sector have specific legal duties that they need to meet regarding involving service users and communities.
Planning and the Environment
National Planning Policy Framework provides a framework within which locally prepared plans for housing and other development can be produced and states… Plans should…be shaped by early, proportionate and effective engagement between plan-makers and communities, local organisations, businesses, infrastructure providers and operators and statutory consultees.
The Town and Country Planning (Local Planning) (England) (Amendment) Regulations 2017 require local authorities to have a Statement of Community Involvement (SCI) setting out the local authority proposes to involve its communities, stakeholders, businesses and other interested parties in the preparation, alteration and review of the Local Plan, other planning policy documents and the planning application process. The Council have a statutory duty to prepare an SCI and then review and if necessary, update it every five years .
Aarhus Convention – (United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters)
The Aarhus Convention is based on three principles, or pillars namely:
- Access to Information
- Public Participation in Decision-making
- Access to Justice in Environmental Matters
It lays down a set of basic rules to promote the involvement of citizens in environmental matters and improve enforcement of environmental law.
Health and Social Care
Section 242, of the NHS Act 2006, places a duty on the NHS to make arrangements to involve patients and the public in planning services, developing, and considering proposals for changes in the way services are provided and decisions to be made that affect how those services operate.
Section 244 requires NHS bodies to consult relevant local authority Overview and Scrutiny Committees (OSCs) on any proposals for substantial variations or substantial developments of health services.
Section 14Z2 of the Health and Social Care Act 2012 places a specific duty on Clinical Commissioning Groups to ensure that patients and the public are involved in the planning of services, developing proposals for any changes to services, and the operation of services.
Statutory guidance on these duties includes
- Patient and Public Participation in commissioning health and care – statutory guidance for Clinical Commissioning groups and NHS England and
- Involving people in their own health and care: statutory guidance for clinical commissioning groups and NHS England
- Framework for patient and public participation in public health commissioning
- Framework for patient and public participation in primary care commissioning
NHS Constitution 2010 places a statutory duty on NHS bodies and explains a number of rights which are a legal entitlement for patients. One of these is the right to be involved directly or indirectly through representatives in the:
- Planning of healthcare services.
- Development and consideration of proposals for changes in the way those services are provided; and
- Decisions to be made affecting the operation of services.
Note the NHS Constitution applies to all NHS organisations – including NHS providers and contract monitoring arrangements should reflect this. NHS England requires CCGs to demonstrate how as part of the Integrated Assessment Framework providers are being held to account in relation to public involvement.
The Care Act 2014 places a series of duties and responsibilities on local authorities about care and support for adults. The expectation within the Care Act is that those responsible for commissioning services should develop them on the basis of active engagement and consultation with service users, carers, and providers.
Children and Families
Section 19 of the Children and Families Act 2014 sets out the general principles that local authorities must have regard to when supporting disabled children and young people and those with Special Educational Needs under Part 3 of the Act. Local authorities must pay particular attention to:
- the views, wishes and feelings of children and their parents, and young people;
- the importance of them participating as fully as possible in decision-making and providing the information and support to enable them to do so; and
- supporting children and young people’s development and helping them to achieve the best possible educational and other outcomes.
A Local Offer must be developed by local authorities and their health partners, together with children and young people with SEN and disability and their families.
Under the Localism Act 2011 every council in England is required to provide a ‘comprehensive and efficient’ library service. This must be done:
- in consultation with their communities
- through analysis of evidence around local needs
- in accordance with their statutory duties
Libraries Deliver: Ambition for Public Libraries 2016 to 2021 says that library services should co-design and co-create their services with the active support, engagement and participation of their communities
Homelessness Guidance on housing authority duties to carry out a homelessness review and publish a homelessness strategy. Housing authorities must consult public or local authorities, voluntary organisations, or other persons as they consider appropriate before adopting or modifying a homelessness strategy. Housing authorities will also wish to consult with service users and specialist agencies that provide support to homeless people in the district.