The Court of Appeal has, today, made a mixed ruling in a case relating to the government’s failure to lawfully consult on its National Disability Strategy.
The court disappointingly upheld the government’s appeal and ruled that the UK Disability Survey (launched in January 2021) did not constitute a consultation. However, the court did not rule on the government’s argument that the legal principles that have long applied to voluntary consultation should not in fact apply. In doing so, the court has maintained the existing principled safeguards around the voluntary consultation process.
Following a judicial review brought by four disabled claimants, on 25 January 2022, the High Court declared that the government’s UK Disability Survey did amount to a consultation, but that the Secretary of State had failed to provide sufficient information on the proposed strategy to allow for meaningful response: R(Binder & Others) v Secretary of State for Work and Pensions  EWHC 105 (Admin). The High Court found that this rendered the National Disability Strategy unlawful.
The government appealed to the Court of Appeal, with the hearing taking place on 28 June 2023.
The government appealed on two grounds:
- Ground 1 was that the High Court judge had been wrong to find that the survey amounted to a consultation. The government argued that the survey was simply an information-gathering exercise and thus the legal principles applying to consultations did not apply to the survey.
- Ground 2 was that the Gunning principles do not apply to voluntary consultations. The government had not raised this ground before the High Court, so sought permission to raise it before the Court of Appeal.
Giving judgment, LJ Elisabeth Laing found in favour of the government on Ground 1, agreeing that the survey did not amount to a consultation, but was instead an information-gathering exercise.
The court held that the government’s own repeated references to the survey as a consultation and placement of the survey on its ‘Consultation Hub’ were ‘irrelevant’ to determining whether the government considered the survey to be a consultation. The court overturned the High Court’s finding that the government acted unlawfully in failing to properly consult disabled people via the survey. The court also held that the Gunning principles apply only where ‘there is a proposal to make a decision’ (paragraph 85 of the judgment).
However, the court refused to rule on Ground 2, meaning that the safeguards around the voluntary consultation process continue to be protected – for the moment at least. Whilst two of the judges saw force in the government’s arguments, LJ Laing noted in strong terms that:
‘If it is to be assumed that a public authority has freely decided to consult on the sort of decision to which the Gunning criteria are capable of applying, I also find it difficult to see, whether the test is fairness, or rationality, why the Gunning criteria, or an equivalent, should not apply to that exercise.’ (paragraph 92).
The Claimants have today confirmed that they will be seeking permission to appeal the Court of Appeal’s judgment to the High Court.
One of the Claimants, Ms Jean Eveleigh, stated:
The National Disability Strategy was intended to make the lives of disabled people better. It is unconscionable that the government could produce a national strategy for disabled people and not find it necessary to properly consult with disabled people. I am very disappointed that the court agreed with the government’s argument that when it claimed the survey was a consultation multiple times and placed it on its Consultation Hub, this did not mean it was a consultation. We are now considering our next steps and will continue to fight for the rights of disabled people.
The Claimants are represented by Karen May and Shirin Marker, with the assistance of Jessica Webster of Bindmans LLP, along with Jenni Richards KC, Steve Broach and Katherine Barnes of 39 Essex Street Chambers.