High Court Finds Government's National Disability Strategy Unlawful

Mr Justice Griffiths has allowed a claim for judicial review brought by four disabled people challenging the Government's recently published National Disability Strategy ("the Strategy") on the basis that: (i) the Defendant's "Survey" carried out prior to the publication of the Strategy amounted to a consultation at common law; and, (ii) the consultation failed to comply with the common law requirement (the second "Gunning" principle) that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response.

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, applying the test from R (FDA) v Minister for the Cabinet Office [2018] EWHC 2746 (Admin) whether the Survey was "in substance" a consultation. Griffiths J found this to be the case based on contemporaneous documents which indicated that the Survey results were intended to influence the content of the Strategy, various references to the Survey as a "consultation" by the Defendant as well as the various references in the Strategy to it having been shaped by the Survey. The court therefore concluded that the Defendant had voluntarily embarked on a consultation exercise which meant that the Gunning principles applied.

The court went on to find that the consultation failed to comply with the second Gunning principle in circumstances where the Defendant failed to inform consultees of what she proposed to include in the strategy and because the design of the Survey precluded intelligent response:

"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. It therefore failed to achieve its stated purpose. It did not let respondents to the Survey "know in clear terms what the proposal is and exactly why it is under positive consideration" as required by Coughlan and Moseley. 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.

 Other criticisms are made by the claimants of the Survey and, indeed, of the Strategy. In addition to the lack of information, 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. The design of the Survey forced the defendant's own analysis on respondents, without providing enough leeway for the required "intelligent response" from the respondents themselves." (At [75]-[76]).

The full case name and citation is: R (Binder, Eveleigh, Hon and Paulley) v Secretary of State for Work and Pensions [2022] EWHC 105 (Admin). You can view the judgment here.

Steve Broach and Katherine Barnes acted for the successful Claimants, instructed by Jamie Potter and Shirin Marker at Bindmans.