BUJ, R (on the application of) v London Borough of Bromley [2026] EWCA Civ 888

[2026] EWCA Civ 888Case No CA-2026-000479
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2026] EWHC 102 (Admin)
ON APPEAL FROM THE KINGS BENCH DIVISION
ADMINISTRATIVE COURT
ANDREW BURNS KC
(sitting as a Deputy Judge of The High Court)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/07/2026
Before
LORD JUSTICE BAKERLORD JUSTICE DINGEMANSSenior President of TribunalsLADY JUSTICE WHIPPLE
Between
THE KINGAppellant(on the application of BUJ, a protected party,Appellantby his father and litigation friend, MNO)AppellantLONDON BOROUGH OF BROMLEYRespondent
Jamie Burton KC and Alice Irving (instructed by Bindmans LLP) for AppellantWayne Beglan and Jackson Sirica (instructed by London Borough of Bromley Legal Services) for RespondentHearing Hearing dates : 9 & 10 June 2026
Approved JudgmentThis judgment was handed down remotely at 12, noon on 10.07.2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This appeal raises issues about the circumstances in which a local authority is subject to a common law duty to consult users of its services, and the application of section 31(2A) of the Senior Courts Act 1981 in circumstances where there has been an unlawful failure to consult.[2]The appeal is against an order dated 29 January 2026 by Andrew Burns KC, sitting as a Deputy High Court Judge (the judge). The judge dismissed a claim for judicial review made by BUJ against the London Borough of Bromley (the council). BUJ, a protected party acting by his father and litigation friend MNO, had sought an order quashing the council’s decision dated 22 December 2025 to close the Poverest Centre, an adult education centre in Bromley. The main ground of the claim for judicial review was that there had been an unlawful failure to consult with BUJ and other learners with learning difficulties and disabilities (LLDD) who used the Poverest Centre.[3]The judge held that there had been an unlawful failure to consult BUJ, but applied section 31(2A) of the Senior Courts Act 1981 and found that it was highly likely that the outcome for BUJ, namely the closure of the Poverest Centre, would not be substantially different if the conduct complained of, namely the failure to consult, had not occurred. The judge dismissed other grounds of claim for judicial review finding: that there was no breach of the public sector equality duty (PSED), contrary to section 149 of the Equalities Act 2010; and that the council had not acted in breach of the Tameside duty to make adequate inquiries. The judge made no order as to costs.[4]BUJ appeals against: the application of section 31(2A) of the Senior Courts Act 1981 by the judge; the dismissal of the claim that there was a breach of the PSED; and the order for costs. The council, by a Respondent’s Notice, cross appeals against the judge’s finding that there was a duty to consult, and that time for bringing the claim should be extended.[5]It was apparent, following the oral and written submissions made by Mr Burton KC and Ms Irving on behalf of BUJ, and Mr Beglan and Mr Sirica on behalf of the council that the following matters were in issue, namely whether:(1) the judge was wrong to grant an extension of time to BUJ to bring the claim for judicial review;(2) the council was under a common law duty to consult those affected prior to the decision to close the Poverest Centre;(3) the judge erred in concluding that there was no breach of the PSED, including whether he had regard to material not before the decision maker;(4) the judge erred in his application of section 31(2A) of the Senior Courts Act 1981, in particular in concluding that it was highly likely that the outcome would not have been substantially different had the failure to consult not occurred; and(5) the judge erred in making no order as to costs. Factual background[6]The relevant facts are set out in the judgment below, but given the issues relating to the extension of time granted by the judge to bring the claim, and the matters raised by the application of section 31(2A) of the Senior Courts Act 1981, it is necessary to set out some of the facts so that the issues on appeal can be understood.[7]The Poverest Centre is one of the council’s two adult education centres in the Borough. The Poverest Centre is in the south part of the borough close to BUJ’s home. The other adult education centre is the Kentwood Centre, which is located in Penge, a densely populated area in the northern part of the Borough and an area of economic deprivation. It is further from BUJ’s home.[8]The Poverest Centre provides a wide range of courses, including some for adult learners with learning difficulties. BUJ is an adult in his late 30s, with learning disabilities, atypical autism and epilepsy. His social care assessment includes the need to develop or maintain personal relationships because there is a risk for him of social isolation. He lives at home with his parents, and is cared for by them with support from his older brothers. BUJ’s conditions have a significant impact on his day to day life.[9]BUJ has been a user of the Poverest Centre for some 14 years, attending some four days a week (1-3 pm on Mondays, and 10 am -12 noon on Tuesday, Wednesday and Thursday). The journey to the Poverest Centre is short, and his time there is also short because he can only use a lavatory at home. He has learned from his time at the Poverest Centre and developed relationships with the teachers and other pupils.[10]The evidence showed that the decision to close the Poverest Centre was taken by the council in order to attempt to provide overall improvements to a large group of people across the full range of adult education services, at a time when it was dealing with financial pressures of unfunded budgets relating to adult social care and housing. It seems that the council proposed to restructure its adult education services to change how and where they were delivered to save money, while avoiding any reduction in services.[11]The council carried out an operational property review from 2022 which ran until 2024. An operational property review report dated 18 November 2022 identified a workstream for refurbishment of adult education centres. Recommendations were accepted on 30 November 2022 by the Executive (the decision maker for the council). It was recorded that a review of the council’s operational property had been undertaken to identify the optimal operational estate. Part of the report identified the Poverest Centre as one of 20 properties which might be surplus to requirements and suitable for housing. There was a need to spend up to £164 million to repair and maintain the existing estate of properties. The Poverest Centre was on a site of 1.176 hectares. That site was identified as a site for providing up to 50 local homes.[12]In March 2023 an operational property refurbishment programme report was published which included estimates for refurbishment of adult education centres. The estimated costs of refurbishing the Poverest Centre are significant.[13]In February 2024, an options appraisal of the Poverest Centre was carried out. The appraisal document dated 27 February 2024 identified nine options: 1) the Poverest Centre is retained with only key repairs; 2) repair the Poverest Centre using the approved budget; 3) repair the Poverest Centre and use the unused land for housing; 4) demolish the Poverest Centre and rebuild along with housing; 5) move adult education services from the Poverest Centre to Churchill Court and sell the unused land; 6) move the adult education centre from the Poverest Centre (options 5, 8 or 9) and sell the Poverest Centre site; 7) deliver other council services at the Poverest Centre site alongside adult education in conjunction with options 2, 3 or 4; 8) move the adult education services from the Poverest Centre to Astley Day care centre; and 9) move the adult education services from the Poverest Centre to Kentwood Centre. It is apparent that many of these options overlapped. There were costings of the various options on a table (at page 81 of the supplementary bundle) which appeared to show that the least expensive option would be option 6. The council rely on the strategic nature of the review as showing that there was no need to consult with members of the community or the service users of each of the properties.[14]On 14 May 2024 there was a Children, Education and Family Services Transformation workshop at which the Poverest Centre was identified as surplus to requirements, together with 7 other Children, Education and Family Services properties. Across the council’s operational estate, a total of 20 properties were identified as surplus to requirements. In August 2024 the list of surplus properties was reduced to 14 in an Extended Property Review considered at the Chief Officer’s Executive meeting. In September 2024 the Extended Property Review was considered at Cabinet and Directors meeting and the list of properties identified as surplus to requirements was reduced to 11.[15]Mr Beglan, on behalf of the council, identified the range of professionals who had been involved in the process leading up to the decision to close the Poverest Centre, and the fact that the location of the Poverest Centre was suitable for housing when the Kentwood Centre was not, as supporting the judge’s conclusion that it was highly likely that a consultation process would not make any difference to the outcome. Mr Burton, on behalf of BUJ, pointed to the range of options which had been considered in relation to the Poverest Centre and the fact that there had been a reduction in the number of properties that had been considered to be surplus to requirements (from a long list of 20 properties, to 14, and then 11) and the involvement of many people, who would have their own views, during the process to submit that it was not possible to say that it was highly likely that the consultation would have had no effect on the decision to close the Poverest Centre.[16]The site of the Kentwood Centre was not assessed as being suitable for housing or disposal. In June 2024 the council decided that the Kentwood Centre was of sufficient size to be upgraded and adapted to accommodate the required provision of adult education courses. It was proposed that adult education, and other courses would be delivered between the Kentwood Centre, as a “hub”, using other, council premises such as libraries and community centres as the “spokes” around the borough. The council expressly noted that the disposal of the Poverest Centre would have a negative impact on the range of courses offered, and that some courses would become untenable. The council noted that some people who could access the Poverest Centre would be unable to travel easily to the Kentwood Centre. The solution proposed by the council was that those who would struggle to access the Kentwood Centre would be able to travel to the various “spoke” locations around the Borough.[17]On 21 November 2024, the adult education service completed a spatial planning questionnaire. The service identified the need for specialist facilities that were essential for delivering adult SEND programmes. A cookery room, at least one big room for music, dance and drama, a quiet or breathe space for LLDD users, and outdoor areas for gardening courses which were accessible for wheelchair users was also identified. It was recorded that arts and crafts courses required sinks, specialist equipment and storage space, and a cafe was used by LLDD users to support their catering qualification.[18]An Equality Impact Assessment (EIA) was completed on 17 December 2024. This was described as a draft EIA, but it was referred to as a draft only because it was a document which could be updated in the light of further information. The EIA recorded that some of the satellite “spoke” sites might not be fully accessible, and that longer travel distances or costs could reduce attendance and access for some users. The EIA stated that there were 99 LLDD users at the Poverest Centre, with a wide range of needs including visual/hearing impairment, mobility impairment, autism, epilepsy, cerebral palsy and various mental health conditions. “The vast majority of courses for [LLDD] is currently delivered from the Poverest Centre”. Further:
“Disability is a defining feature of our service users… This does however present an issue with ensuring accessibility… some of the satellite sites may not be fully accessible… Longer travel distances could reduce attendance and access to learning opportunities …”
As to what actions can be taken to avoid or mitigate these negative impacts the EIA stated:
“Ensure that the programming of the adult education courses takes into account which satellite sites are fully accessible and which are not and takes in to account the needs of specific service users particularly in relation to the type of course being delivered” and “Programming of the service considered so that courses meeting the needs of specific communities are located at more accessible sites.”
[19]The conclusion reached was that adjustments could be made to remove the barriers identified. There was some discussion at the hearing of the appeal about whether the correct box was ticked because the EIA suggested adjustments would mitigate rather than remove the barriers.[20]The relevant decision was made on 22 January 2025 by the executive of the council. The actual decision was(1) to “progress… operational plans (informed by ongoing stakeholder engagement) to enable the disposal” of five sites, including the Poverest Centre; and(2) to “progress… the disposal of these sites and officers taking them to market once the operational plans are in place and approved by the relevant Portfolio Holder … unless officers identify affordable housing delivery potential for any of these sites, in which case separate reports will be brought to committee”.[21]At the executive meeting on 26 March 2025 it was decided to allocate £27.3 million to the capital programme for the development of housing on the site of the Poverest Centre. We were told at the hearing that planning permission was being sought for 44 affordable houses, although there was no explanation as to why that number had been reduced from the 50 houses mentioned in earlier documents.[22]By a letter dated 28 April 2025 to users of the Poverest Centre and their families, the council communicated its decision to close the Poverest Centre. In that letter it was stated that the council planned to relocate all services currently delivered from the Poverest Centre to the Kentwood Centre. It was later clarified that not all courses would be moved to the Kentwood Centre and that other sites would be used alongside this centre. In letters to users of the Poverest Centre the council referred to a 30 day consultation, which is now accepted to have been a miscommunication. The judgment below[23]In relation to the duty to consult, the judge decided that fairness required that the council consult with LLDD users and their families and their carers before deciding to close the Poverest Centre. The users of the Poverest Centre had been permitted to enjoy the benefit or advantage of activities for many years. The change to providing courses requiring specialist facilities and equipment was significant to someone in the LLDD category. The judge found that the LLDD users and families:
“…had something to say that was relevant to the decision to be taken. They would have commented on whether the need for specialist courses in the south of the borough was so important that it outweighed the factors in favour of closure.”
[24]The judge then went on to consider section 31(2A) of the Senior Courts Act 1981. The judge held that the “outcome” was the decision to close the Poverest Centre and move to the hub and spoke model. The “conduct complained of” was the failure to consult the LLDD users and their families or carers about the decision.[25]The judge concluded that the failure to consult was highly likely to have made no difference to the outcome. In that respect the judge specifically highlighted that the council had a public need and duty to address its budgetary and housing challenges by disposing of property and the evidence given to the court provided a full and clear explanation of the decision making process demonstrating that the Poverest Centre was appropriate for housing while the Kentwood Centre was not. Nothing that could be said by BUJ or others who were entitled to be consulted would have changed that. In the absence of any exceptional public interest, the judge refused relief.[26]In relation to the claim under the PSED, the judge found it was not arguable that the council failed to make adequate inquiries in relation to its duty under section 149 of the EA 2010. The EIA recognised the potential impact of the decision. It considered the risk of longer travel distance and recognised the disruption to familiar routines and possible increases in transport costs with sections dedicated to mitigating those issues. It was considered before the council took the decision and that assessment along with the reports showed that the council had its equality obligations in mind during the decision making process.[27]As to the extension of time to bring proceedings, the judge was satisfied that the claim was issued promptly and that this was an appropriate case in which to grant an extension of time. There was a lack of clarity as to whether and when the council had taken its decision and BUJ could not realistically have known about the decision prior to 28 April 2025, notwithstanding that it could be said to have been taken on 22 January 2025.[28]The judge made no order as to costs. This was because although BUJ had shown that the council had acted unlawfully, section 31(2A) applied and meant that the judge had to refuse relief. The judge considered it a just outcome that neither side pay the other’s costs. The extension of time to bring the claim for judicial review – issue one[29]The decision was made on 22 January 2025, but the claim was not commenced until 30 July 2025. CPR 54.5 provides “(1) the claim form must be filed –(a) promptly; and(b) in any event not later than 3 months after the grounds to make the claim first arose.” The time does not run from the date when the claimant first learned of the decision, although that may be relevant to the issue of whether to grant an extension of time.[30]A court may grant an extension of time pursuant to CPR 3.1(2)(a). Public law claims are unlike ordinary civil litigation and require strict adherence to the time limits governing claims for judicial review, and courts will require a good reason for extending the time limit. Section 31(6) of the Senior Courts Act 1981 provides that where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant leave or any relief “if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration”.[31]It was common ground on the appeal that the claim was not brought within three months of the decision, but that the council had not communicated its decision to close the Poverest Centre to any LLDD users of the Poverest Centre before the three month limit had expired. Further, when BUJ’s family asked about the proposed consultation the council referred to the proposed or potential closure of the Poverest Centre, when in fact the decision had already been made to close the Poverest Centre. It is apparent that the confusion in the wording of some of the correspondence did not help either party.[32]Judicial review is a process designed to permit the speedy audit of the legality of public decision making. A system which, in an attempt to deliver justice, causes delay and prejudice to good administration can itself become a cause of injustice to those waiting for the public body to make decisions and provide, among other matters, affordable housing. In this case, however, the judge’s decision to grant an extension of time was based on the evidence and was not wrong because the claim could not in reality have been commenced any earlier.[33]The judge also found that the council had not shown substantial hardship or detriment to good administration. This was because the planned closure of the Poverest Centre is not due to take place until later in the year and work on any new affordable housing units will not commence until 2027 or later. The relatively short delay occasioned by bringing the claim did not result in hardship. Any consultation would be required to be carried out in accordance with the principles set out in R v Brent London Borough Council ex parte Gunning (1985) 84 LGR 168, but this should not compromise the proper implementation of whatever decision is made following the consultation. The council’s common law duty to consult those LLDD about the decision to close the Poverest Centre – issue two[34]As Lord Reed said in R(Moseley) v Haringey London Borough Council [2014] UKSC 56; [2014] 1 WLR 3947 (R(Moseley)) there is no general common law duty on a public authority to consult persons who may be affected by a measure before it is adopted. The decided cases in this area have identified benefits from public consultation such as more informed decision making and allowing those affected by decisions to be heard. These benefits do not, however, mean that it is unlawful to fail to carry out a public consultation, and it has also been pointed out that public decision making would grind to a halt if there was a duty to consult in relation to every decision. The question for this court is not whether consultation with the LLDD users of the Poverest Centre was desirable, but whether it was unlawful not to carry out the consultation.[35]A legal duty to consult can, however, arise in a number of ways. First, there may be a statutory duty to consult, as was the case in R(Moseley), see paragraphs 23 and 35 where the Supreme Court considered whether a consultation carried out by a local authority on its council tax reduction scheme had been lawful.[36]A duty of consultation will also exist in circumstances where there is a legitimate expectation of such consultation. A public body may have created a legitimate expectation that there would be a consultation before a decision was made. This can arise either because of a promise to carry out a consultation, or because there had been a past practice of carrying out consultations before a decision of the type was made. This has sometimes been termed a procedural legitimate expectation, see R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 at paragraph 57 (ex parte Coughlan).[37]Thirdly, a duty to consult may arise where a failure to consult would lead to such unfairness that it would be an abuse of power on the part of the council to make the decision without a consultation of those interested in the decision. This was termed a “secondary case of procedural legitimate expectation” in paragraph 40 of R(Bhatt Murphy) v Secretary of State for the Home Department [2008] EWCA Civ 755; (2008) Times 21 July (Bhatt Murphy). What fairness requires will always be fact specific. This type of common law duty to consult has been expressed as applying where “a failure to consult would lead to conspicuous unfairness”, see R(Plantagenet Alliance) v Secretary of State for Justice [2014] EWHC 1662; [2015] 3 All ER 261, reflecting the approach in Bhatt Murphy at paragraphs 39 to 42. Other authorities have analysed this duty to consult as arising where it would have been irrational, in traditional public law terms, to change policy and close a building without first consulting the persons affected by that change of policy. This is because the decision to adopt one policy to provide services at an adult education centre, and then to adopt another subsequent and different policy to close that adult education centre, will normally involve two lawful exercises of power by the relevant public authority. However, if in the particular circumstances of a case, there are particular users of that adult education centre who have such a pressing and focussed interest in the continuation of the first policy, that fairness requires that they are consulted before the adult education centre is closed and it would be irrational not to consult them, then they would be entitled to rely on the doctrine of legitimate expectation, see ex parte Coughlan at paragraph 66.[38]It is apparent that this test is more likely to be satisfied where the class of persons affected is either an individual or a few people, and less likely to be satisfied where there are many who will be affected, see ex parte Coughlan at paragraph 59. Laws LJ in Bhatt Murphy at paragraph 49 suggested that this case of legitimate expectation of consultation would not often be established and that the impact of the authority’s past conduct “on potentially affected persons must be pressing and focussed. One would expect at least to find an individual or group who in reason have substantial grounds to expect that the substance of the relevant policy will continue to enure for their particular benefit”. Any change could only lawfully be made after notification and consultation.[39]In R(BAPIO) v Secretary of State for the Home Department [2007] EWCA Civ 1137; [2008] ACD 7 the Court of Appeal rejected a claim that a group of doctors undertaking medical training should have been consulted before a change in policy about permit free training. This was in part because there was a statutory procedure by which changes to immigration policy had to be made under the Immigration Act 1971 and there was no warrant for common law duties of procedural fairness to be added on to the scheme. Where a local authority is setting overall budgets, the large class of persons affected by such decisions will make it very difficult to show a duty to consult, see R(L) v Warwickshire County Council [2015] EWHC 203 (Admin); [2015] BGLR 81. In that case the local authority had, in response to a time of austerity, set a lower budget in accordance with democratic procedures and safeguards.[40]A common law duty to consult residents of a council run residential home was, however, found to have arisen in R v Devon County Council, ex parte Baker [1995] 1 All ER 73. There a local authority was held to be under a duty to consult residents before making the decision to close a residential home, so that the residents might have a reasonable opportunity to make their objections known. In R(LH) v Shropshire [2014] PTSR 1052 a local authority was held to be under a common law duty to consult users before it decided to close a day centre. In that case it was common ground that the local authority did owe a common law duty to consult users of the day centre, but there was a dispute between the parties about whether the consultation had been adequate. Longmore LJ stated at paragraph 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”, noting in paragraph 26 that “closure of day centres is undoubtedly a serious step to take from the perspective of users and those who care for them”.[41]In my judgment the judge was right to find that the council was under a common law duty to consult with LLDD users of the Poverest Centre and their carers before the decision to close was taken. This was a small group of readily identifiable persons, being the 99 LLDD individuals regularly using the Poverest Centre and their carers. The evidence showed that for some of them the Poverest Centre was a centre of their lives outside their homes. The LLDD users had a legitimate expectation, arising under the duty on the council to act fairly, that they and their carers would be consulted before the Poverest Centre was closed and it would be irrational to close the Poverest Centre without giving them the opportunity to make representations. This was because they would reasonably expect adult education services to continue to be provided at that location, but that if a change were to be made, they would be notified and consulted before a change was made. This meant that the LLDD users and their carers had a legitimate expectation that they would be consulted before the decision was made to close the Poverest Centre, in much the same way that the users of the residential home in ex parte Baker and the adult day care centre in R(LH) had a legitimate expectation of consultation before the closure of the residential home or adult day care centre.[42]Mr Beglan, on behalf of the council, submitted that there was an additional requirement to be satisfied before a duty to consult could be imposed on the council, namely a requirement to show prejudice to an individual. He referred to dicta to the effect that there would be “no breach of the principles of procedural fairness even if a particular step has not been taken where that has not resulted in any prejudice to the individual”, see R(Save Stonehenge World Heritage Site Limited) v Secretary of State for Transport [2024] EWCA Civ 1227; [2025] PTSR 726 (Stonehenge) at paragraph 75.[43]The court in Stonehenge was addressing the common law principles about procedural fairness in terms which were consistent with the summary of legal principles set out above. As noted above what fairness requires will always be fact specific, see paragraph 38 above. In Stonehenge there was no basis on which a finding of a breach of procedural fairness could be made, because there was not any unfairness to any individual, so it was not an additional requirement to be satisfied, it was simply an illustration of the point that there is very unlikely to be unfairness if no one has been prejudiced or affected.[44]In this case, by contrast, applying the principles set out in paragraphs 34 to 40 above, it was irrational to close the Poverest Centre without first consulting the 99 LLDD users of the Poverest Centre and their carers. That plainly prejudiced them, and is the basis for finding that there was a legitimate expectation of consultation before closure of the Poverest Centre. Whether the judge erred in concluding that there was no breach of the PSED or erred in having regard to material not before the decision maker – issue three[45]Section 149 of the Equality Act 2010 provides that “[a] public authority must, in the exercise of its functions, have due regard to the need to –(a) eliminate discrimination…(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it”. Disability is a relevant protected characteristic.[46]The PSED includes, see section 149(3) of the Equality Act 2010, having due regard in particular to the need to “(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low”.[47]It was common ground that the duty must be exercised in substance, with rigour and with an open mind, and that it is a non-delegable duty, see R(Bracking) v SSWP [2013] EWCA Civ 1345; [2014] Eq.LR 60 at paragraph 26. It was common ground that the PSED did not require a particular result once due regard had been paid to the relevant matters.[48]It was apparent that the executive, as the relevant decision maker, was provided with an EIA which considered the LLDD users of the Poverest Centre and their particular needs, and the likely effect of the closure of the Poverest Centre on them. Although there was some discussion at the hearing whether the correct box in the EIA had been ticked, namely adjustments removing barriers, rather than mitigating the barriers, it is apparent that the executive as the decision maker had due regard to the relevant matters, including for example the risk of longer travel distances, and the disruption that might bring to users and their families.[49]Mr Burton pointed to paragraph 60 of the judgment below in which the judge said “the defendant took into account that specialist facilities, which were necessary for some courses, could only be provided at Kentwood” and identified that this was not in the relevant documentation before the executive, and so could not have been considered by the executive, meaning that a material matter had not been considered by the decision maker. In my judgment it was apparent that the executive, as the decision maker, with the benefit of the EIA, did have due regard to the need to eliminate discrimination and advance equality of opportunity between those LLDD users of the Poverest Centre who had a relevant protected characteristic and those who did not share it. The executive had been alerted to the fact that courses would not continue to be provided at the Poverest Centre and that some LLDD users of the Poverest Centre would need to travel further, with the difficulties that would bring, to access courses. The EIA enabled the executive of the council to discharge the PSED. Whether the judge erred in his application of section 31(2A) of the Senior Courts Act 1981 – issue four[50]Section 31(2A) of the Senior Courts Act 1981 provides that the High Court “must refuse to grant relief on an application for judicial review… if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”.[51]The threshold of “highly likely” is a high threshold, see R(Public and Commercial Services Union) v Minister for the Cabinet Office [2017] EWHC 1787 (Admin); [2018] ICR 269 (R(PCSU)) at paragraph 89. When applying section 31(2A) courts should bear in mind that Parliament has not altered the fundamental relationship between the courts and the executive. Courts should still be cautious about straying, even subconsciously, into the forbidden territory of assessing the merits of a public decision under challenge in judicial review proceedings. This is because the merits of a decision are not for the court, the court is concerned only with the legality of the decision. The task of the court is to consider whether, if the unlawful conduct had not occurred, it is highly likely that the outcome would not be substantially different. The court is concerned with evaluating the significance of the error on the decision making process, see R(Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489; [2025] 4 WLR 58 at paragraph 71 where the court held that the loss of an opportunity to make representations following a report which should have been provided to the planning authority was highly likely to have made no difference. That was because of the representations which had already been made, and the contents of the relevant report when it was provided.[52]The following propositions appear from the terms of section 31(2A) of the Senior Courts Act and relevant authorities. First there is a statutory obligation on the Courts, pursuant to section 31(2A) of the Senior Courts Act, to refuse to grant relief on an application for judicial review “if it appears highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred” unless the court considers, pursuant to section 31(2B), those requirements might be disregarded for “reasons of exceptional public interest”. Secondly this statutory test replaces the previous discretion of the court hearing a claim for judicial review to refuse to grant relief where the decision maker would “necessarily” have made the same decision, as considered in Simplex GE (Holdings) and another v Secretary of State for the Environment (1989) 57 P&CR 306 at 327 and 329. This means that a narrow construction of “conduct” is not appropriate, see Goring-on-Thames Parish Council at paragraph 47. Thirdly the threshold remains a high one, see R(PCSU) at paragraph 89, and courts still have to be cautious about straying into the forbidden territory of assessing the merits of a public law decision challenged in judicial review proceedings.[53]It was common ground that the judge summarised the relevant principles of law to be applied accurately, but Mr Burton on behalf of BUJ submits that the judge did not apply them properly because there were nine potential options considered for the Poverest Centre and it was not possible to say that, with the input of views from the LLDD users of the Poverest Centre, a different option might not have been pursued. The judge crossed permissible constitutional boundaries by saying that the views of the LLDD users of the Poverest Centre would have made no difference to the option chosen and it is not possible, where a consultation should have been carried out, to apply section 31(2A). Mr Burton suggested that if a consultation was required to be carried out, any judge who found that it was highly likely that it would have made no difference to the decision making would have been overstepping the proper constitutional boundaries.[54]Mr Beglan on behalf of the council submits that the judge had correctly reflected on the evidence that there were negative financial implications for all of the competing options apart from option six which was to close the Poverest Centre and sell it. The evidence adduced on behalf of BUJ about the views of the LLDD users of the Poverest Centre for the purposes of these proceedings did not disclose anything that the executive had not taken into account, and in particular the effect on LLDD users of the Poverest Centre.[55]I do not accept the proposition that if there has been an unlawful failure to carry out a consultation, it will never be possible to say that it was highly likely that the relevant decision would have been the same. Everything depends on its particular facts, as appears for example in Bradbury where the failure to provide reports meant that an opportunity to make further representations was lost, but where in the particular circumstances it would have made no difference to the outcome.[56]It is apparent that the Poverest Centre requires expensive refurbishment and repair if it is to continue to operate, and there is space on the site for affordable housing if it is closed. It is apparent that the executive was aware that adult education services would not be provided from the Poverest Centre and that would affect LLDD users of the Poverest Centre. That said it is apparent that there were options for the Poverest Centre which were being considered. The choice of option six might have been affected by the views of the LLDD users of the Poverest Centre. This is because the executive might have been persuaded that some limited provision from the Poverest Centre (or a remodelled part of it) could continue while still providing affordable housing. There were other council properties (the long list of 20 properties was shortened to 11 during the process) which had been considered for closure which were not taken forward, and it is not possible to say whether those properties might not have been considered as suitable for sale, so that it did not have to be a binary choice between the Kentwood Centre and the Poverest Centre. Mr Beglan is right to say that experts have been involved in the decision making on behalf of the council, but it is apparent that things can change and develop, for example the decision not to sell the Poverest Centre but to develop it for affordable housing, and the decision not to place 50 affordable housing units on the site but only some 44 units. In my judgment the materials before the judge did not permit the judge to say that it was highly likely that a consultation of the LLDD users and carers of the Poverest Centre would not have made a difference to the decision making, and that it was highly likely that the Poverest Centre would still have been closed. It is possible, perhaps probable, that the executive will make the same decision, but it is not highly likely. The costs below – issue five[57]In the light of my conclusion on the issues above, it is apparent that the claim for judicial review succeeds. In these circumstances the correctness of the judge’s decision on costs does not arise for decision. Conclusion[58]For the detailed reasons set out above I would allow BUJ’s appeal and dismiss the council’s cross-appeal. This means that BUJ’s claim against the council that it was unlawful to decide to close the Poverest Centre without first consulting LLDD users of the Poverest Centre and their carers succeeds, and the decision to close the Poverest Centre will be quashed. The council will have to carry out a consultation of LLDD users of the Poverest Centre and their carers before deciding whether to close the Poverest Centre. Such a consultation will have to be carried out in accordance with Gunning principles. Although it may be that the council will make the same decision to close the Poverest Centre after taking into account the product of the consultation exercise, I am unable to say that it is highly likely that it will do so. Lady Justice Whipple[59]I agree. Lord Justice Baker[60]I also agree.

Cited in 1 later judgment