On 25 January 2022, the High Court declared the government’s National Disability Strategy was unlawful, upholding the Claimant’s claim: R(Binder & Others) v Secretary of State for Work and Pensions [2022] EWHC 105 (Admin). 

The government appealed this judgment to the Court of Appeal. Judges at the Court of Appeal will hear the appeal today and tomorrow.

Background

The Claimants, Doug, Jean and Vicki argued that the Secretary of State had chosen to consult with disabled people through the UK Disability Survey (launched in January 2021), but that she had not provided enough information on the proposed strategy to allow disabled people to meaningfully respond. The government argued that the survey was an information-gathering exercise, not a consultation, and therefore they did not need to provide such information. The National Disability Strategy was published in July 2021, while legal proceedings were ongoing.

The High Court ruled that the Secretary of State did conduct a consultation through the survey, which means they had certain legal duties to follow. The judge looked at the government’s press releases and documents which called the survey a consultation, and said that disabled people’s experiences were important. The government’s plans also said they had listened to disabled people a lot during the survey.

The court also ruled that the survey was supposed to help shape the strategy, but the information given in the survey made that impossible. The survey didn’t have any specific ideas for disabled people to comment on, and the way it was set up didn’t allow for a proper response. The issues that the survey did ask about couldn’t be answered properly because of the way it was designed. This meant that disabled people were not able to provide a fair and proper response.

The government said that the survey wasn’t a consultation because it hadn’t given enough information about the plans. But the judge didn’t agree with that argument. The government couldn’t use its own failure to follow consultation rules as an excuse for why the rules did not apply.

Because the plans were based on an unlawful consultation, the court said that the plans were not legal.

Court of Appeal hearing

The government appealed the High Court judgment, and the hearing will take place today. The government is arguing that the survey was simply an information-gathering exercise and the legal rules applying to consultations do not apply to the survey. The government is also arguing that in general, the legal duties applicable to consultations do not apply to voluntary consultations.

Shirin Marker, solicitor at Bindmans representing the Respondents in this case, comments:

With this appeal, the government is attempting to not only sideline disabled people from a Strategy purported to ‘transform’ their lives but also weaken the principled safeguards long-established in relation to the consultation process. We hope that the Court of Appeal will prevent this from happening and will agree with the robust ruling of the High Court.

The Respondents are represented by Karen May and Shirin Marker of Bindmans LLP, along with Jenni Richards KC, Steve Broach, and Katherine Barnes of 39 Essex Chambers.