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25 January 2022

High Court declares National Disability Strategy unlawful due to inadequate consultation

4 mins

Judgment has been handed down today declaring that the National Disability Strategy is unlawful following a failure lawfully to consult disabled people and others. The judgment is available here: R(Binder & Others) v Secretary of State for Work and Pensions. 

The Claimants, Doug, Jean, Miriam 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 failed to provide sufficient information on the proposed Strategy to allow for meaningful response. 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 Strategy was subsequently published in July 2021, while legal proceedings were ongoing.

The Court held that through the UK Disability Survey, the Secretary of State had voluntarily embarked on a consultation to which legal duties applied. The judge referred to press releases and documents published by the government, which included labelling the Survey a ‘consultation’ and writing that the Survey was to ‘gather views’ on the development and delivery of the Strategy. Repeated reference was also made to placing disabled people’s ‘lived experiences’ at the centre of the Strategy, and the Strategy itself confirmed that the Secretary of State had ‘carried out the biggest listening exercise with disabled people in recent history’.

The Court further held that the Survey was presented ‘as being a way in which the Strategy could be shaped, would be shaped and (eventually) was shaped, but the information provided made that impossible’. This was because the Survey did not include any specific proposals for inclusion in the Strategy on which disabled people could comment, and the multiple-choice format and limited free-form responses did not allow for a proper response even to the issues that the Survey did try to canvass. The Claimants were therefore unable to give the ‘intelligent consideration and response’ required of a fair and lawful consultation.

While the Secretary of State had tried to argue that the Survey was not a consultation precisely because of the lack of information provided to respondents on the Strategy, the judge found this was a ‘circular argument’. The Secretary of State could not rely on her failure to comply with her consultation obligations as the reason why these obligations did not apply. 

Given that the National Disability Strategy was informed by an unlawful consultation, the Court declared the Strategy to be unlawful.

Jean Eveleigh, one of the Claimants in this challenge, said:

I am very pleased the Court has found that the consultation was unlawful and that therefore the National Disability Strategy is unlawful. If the Secretary of State genuinely wishes to place disabled people’s lived experiences at the heart of the Strategy, then she must do so through proper and lawful consultation that provides a meaningful opportunity for disabled people and their organisations to contribute their views. As a strategy that is for disabled people, it should be informed by disabled people. Now that the Court has given this clear declaration, I hope the Secretary of State will carry out a proper and considered consultation to inform a revision of the Strategy.

Victoria Hon, another of the Claimants in the challenge said:

For too long disabled individuals have been infantilised and our views ignored. This judgment sends a clear message that the government cannot claim to consult with disabled people if in practice we are not given the proper opportunity to share our views. It is time the government listened and learned from what disabled people have to say about our own experiences and lives.

Shirin Marker, solicitor at Bindmans LLP acting for the Claimants, said:

Through finding that the Secretary of State did consult in substance and failed to do so lawfully, the Court has made clear that the Secretary of State cannot purport to consult with disabled people while allowing them no opportunity to meaningfully contribute their views. We hope that the Secretary of State will now seek to rectify this unlawfulness, through proper and lawful consultation with disabled people and their organisations – something which the Claimants have sought since February 2021. Any appeal of this judgment will only delay the very necessary policy reform needed to support and improve the lives of disabled people.

The Claimants are represented by Jamie Potter, Shirin Marker and Amy O’Shea of Bindmans LLP, and Steve Broach and Katherine Barnes of 39 Essex Street chambers.

Further details on the case are available here.

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