Court of Appeal hears appeal against judgment declaring Government’s National Disability Strategy unlawful
The Court of Appeal has this week heard an appeal brought by the Government against a High Court judgment which declared its National Disability Strategy as unlawful.
The hearing, which took place on 28 and 29 June, appealed the decision made on 25 January 2022 in R(Binder & Others) v Secretary of State for Work and Pensions [2022] EWHC 105, in which 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 then Secretary of State for Work and Pensions Therese Coffey.
The High Court declared the government’s National Disability Strategy was “unlawful”, upholding the claim 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 judge ruled that the Secretary of State did conduct a consultation through the survey, which means they had certain legal duties to follow, said Bindmans.
The court also ruled that the survey was supposed to help shape the strategy, but the information given in the survey made that impossible.
In his judgment, Mr Justice Griffiths said: “I agree with the claimants that the multiple-choice format, and the word limit on free-form responses (although I am told that this was not enforced), did not allow for a proper response even to the issues canvassed in the Survey.
“[…] I have concluded that the defendant 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.”
The Government appealed the judgment, and the hearing took place this week.
The respondents were represented by Karen May and Shirin Marker of Bindmans LLP, with Jenni Richards KC, Steve Broach, and Katherine Barnes of 39 Essex Chambers.
Prior to the hearing, Bindmans said: “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.”
It added: “The government is also arguing that in general, the legal duties applicable to consultations do not apply to voluntary consultations.”
Shirin Marker, solicitor in Bindmans' Public Law and Human Rights team said: "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."
Lottie Winson
