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High Court rules National Disability Strategy unlawful over consultation failings

The National Disability Strategy has been declared unlawful by the High Court over flaws in the consultation held for it.

In Binder & Ors v Secretary of State for Work And Pensions [2022] EWHC 105 (Admin) Mr Justice Griffiths upheld two challenges made by disability campaigners Jean Eveleigh, Victoria Hon, Douglas Paulley and the late Miriam Binder, who brought the case against the Secretary of State for Work and Pensions Therese Coffey.

They argued that disability groups and affected individuals had not been given a proper opportunity to make submissions on the strategy.

The judge said that while Ms Coffey had not been under a legal obligation to consult, she “took on a duty to consult which she did not properly discharge and, as a result, the consultation she carried out, principally by means of the survey, was not lawful”.

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He rejected though an argument that the survey used to inform the strategy had breached the public sector equality duty.

“The common law does not impose any general duty on decision makers to consult before they take decisions,” Griffiths J said.

But he found that what began as an information gathering exercise with no commitment to link this to specific content in the strategy had nonetheless made that link by the time of a DWP press release in April 2020.

That had said: “The strategy will build on evidence and data, and critically on insights from the lived experience of disabled people”, coupled with the assurance, ”we want to ensure we have enough time to get this right and undertake a full and appropriate programme of stakeholder engagement. People's views and insights will be crucial…”

This was followed by a Disability Unit blog post that said: “We are continuing to listen to stakeholders to find the right areas to build a strategy that makes a real difference to the lives of disabled people”

When the survey was launched, “the link between it and the strategy was made perfectly explicit. The word ‘consultation’ was used and the substance of the press release which accompanied the launch, and of the Disability Unit's blogpost, fully justified that word”, the judge said.

The Secretary of State had accepted that no attempt was made to advise organisations representing disabled people or any outside body of what she proposed to include in the strategy.

“This made it impossible meaningfully to respond in the survey to those proposals before they were finalised and published in the strategy,” Griffiths J said.

“The survey was presented (as I have shown) 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.”

He went on: “The survey was presented as a consultation, and the strategy was said to have been a response to that consultation, but neither the survey nor any other form of consultation enabled the ‘intelligent consideration and response’ required by the second Gunning principle of lawful and fair consultation.”

Use of a multiple-choice format, and the word limit on free-form responses “did not allow for a proper response even to the issues canvassed in the survey”, the judge said.

The claimants were represented by Jamie Potter, Shirin Marker and Amy O’Shea of law firm Bindmans.

Ms Marker 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.”

Ms Hon 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.”

Steve Broach and Katherine Barnes of 39 Essex Chambers, who appeared for the claimants, said: “The claim was unusual in that the defendant‘s primary defence was that the survey was an information-gathering exercise, rather than a consultation, with the result that the Gunning requirements did not apply.

“The court therefore had to consider…whether the survey was ‘in substance’ a consultation. Griffiths J found this to be the case based on contemporaneous documents.”

Mark Smulian

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