Background
BUJ is an adult in his late 30s with learning disabilities, atypical autism, and epilepsy who attended the Poverest Centre, an adult education facility in Bromley, for 14 years. He attended approximately four days per week and had developed relationships with staff and other learners. The Poverest Centre served 99 learners with learning difficulties and disabilities (LLDD) and provided specialist courses requiring dedicated facilities, including a cookery room, music and dance spaces, quiet areas, and outdoor gardening facilities.
In January 2025, Bromley Council decided to close the Poverest Centre as part of restructuring its adult education services. The decision was driven by financial pressures and the council’s desire to use the Poverest Centre site for affordable housing development. The council planned to consolidate services at the Kentwood Centre (a “hub”) with satellite locations (“spokes”) across other council premises. Critically, the council did not inform service users of the decision until 28 April 2025—nearly three months after the decision was formally made on 22 January 2025.
BUJ, through his father as litigation friend, sought judicial review to quash the closure decision. He argued the council unlawfully failed to consult LLDD users and their carers before closing the centre, breached the public sector equality duty, and failed to make adequate inquiries. The High Court found an unlawful failure to consult but applied section 31(2A) of the Senior Courts Act 1981 to refuse relief. The Court of Appeal upheld key aspects of this reasoning.
The Court’s Holding
The Court of Appeal affirmed that the council owed a common law duty of procedural fairness requiring consultation with the 99 LLDD users and their carers before closing the Poverest Centre. This duty arose because: (1) the users formed a small, readily identifiable class; (2) for many, the centre was central to their lives outside their homes; (3) they had a legitimate expectation that adult education services would continue and that they would be consulted before any change; and (4) it would be irrational to close the centre without consultation. The court drew analogy to residential homes and day centres where similar duties to consult had been established. The council’s breach of this duty was unlawful.
However, the Court of Appeal upheld the application of section 31(2A) of the Senior Courts Act 1981. Under this provision, the court “must refuse to grant relief” if it appears “highly likely” that the outcome for the applicant would not have been substantially different if the unlawful conduct had not occurred. The court must assess whether the failure to consult would have changed the decision, not whether the decision itself was meritorious. The council’s decision was driven by overriding budgetary constraints and housing needs; the Poverest Centre site was uniquely suitable for affordable housing development whereas the Kentwood Centre site was not. The court held it was highly likely that even with proper consultation, the council would have proceeded with closure.
On the equality duty claim, the court found no breach of the Public Sector Equality Duty under section 149 of the Equality Act 2010. The council had provided an Equality Impact Assessment to its decision makers identifying the specific impacts on LLDD users (travel distances, disruption to familiar routines, accessibility barriers) and mitigation measures. This demonstrated that the council had exercised its equality duty with due regard, rigour, and an open mind, even if it concluded that the benefits of the restructuring outweighed the disadvantages to this group.
Key Takeaways
- A local authority owes a common law duty to consult with users of a service (particularly vulnerable or dependent users) before closing that service, where they form a small identifiable group with a reasonable expectation of consultation and it would be irrational not to consult them.
- The unlawfulness of a procedural breach (failure to consult) does not automatically result in judicial review relief; section 31(2A) requires courts to assess whether the outcome would “highly likely” have been the same, focusing on the decision-making process not its merits.
- An Equality Impact Assessment provided to decision makers and identifying concrete impacts on disabled users satisfies the Public Sector Equality Duty, even if the decision ultimately proceeds despite identified disadvantages to that group.
- Courts must be cautious not to assess the merits of a public decision when evaluating the significance of a procedural error under section 31(2A).
Why It Matters
This decision clarifies when local authorities must consult service users before closing facilities. While it recognizes that vulnerable users, especially those with disabilities, have legal protections against surprise closures, it tempers this by allowing section 31(2A) to bar relief where the decision would “highly likely” have been the same. This creates a two-tier protection: procedural rights exist and their breach is unlawful, but remedies may be refused if the underlying decision was inevitable. The case is significant for local authorities managing service reductions during austerity, as it confirms the need for consultation even when resource constraints make closure likely, but it also signals that consultation alone may not prevent closure if the authority’s financial or policy position is sufficiently compelling.
The ruling also reinforces that equality duties require genuine engagement with impact assessments before decision-makers; however, satisfaction of the duty does not require a particular outcome in favour of disabled users. The distinction between process (the equality duty) and outcome (the decision itself) remains central to administrative law review.