Case Note: Challenge to Consultations in Judicial Review Proceedings – R (oao Binder et al) v Secretary of State for Work and Pensions [2022] EWHC 105 (administrator)

The Administrative Court recently upheld a challenge to a ‘consultation’ undertaken by the Department for Work and Pensions (DWP) ahead of the publication of the National Disability Strategy. Strikingly, the DWP testified that it had no intention of consulting – but Judge Griffiths argued that, in substance (as opposed to intent), there had in fact been a consultation ; and that, (unsurprisingly as this was not a standard he felt he had to meet) the DWP had failed to meet the legal requirements for fair and adequate consultation.

The factual background to the claim is that in its election manifesto for the December 2019 general election, the Conservative Party said that, if elected, it would publish a “National Disability Strategy by the end of 2020” . After the election, work on this strategy was coordinated by the Disability Unit, a cross-departmental team within the Cabinet Office. Over the course of 2020, he gathered information, including through a dozen meetings with the Disability Charities Consortium as well as other stakeholder groups. On January 15, 2021, the Disability Unit launched what it called a “public inquiry”, the purpose of which was supposed to be “to gather opinions and experiences for the National Disability Strategy”, although it was also said that the inquiry “…forms part of our ongoing consultation”. 2021. In July 2021, the national strategy was published.

In the judicial review proceedings, the plaintiffs, four adults with disabilities, argued that the DWP failed to consult legally via the public inquiry and therefore the national strategy was unlawful. The only remedy sought was a declaration – but the claimants expected that if successful, the DWP would undertake appropriate further consultation and then, if necessary, revise the national strategy.

It is well established that at common law (i) there is no general duty for public bodies to consult before making decisions, but (ii) when public bodies consult each other, they must do so fairly, in accordance with the so-called Gunning law principles (first coined in R v Brent London Borough Council ex pte Gunning (1985) LGR168). There are qualifications to the “no general duty to consult” – in short, where there has been a promise to consult, where there has been an established practice of consultation or (exceptionally) where would be patently unfair not to consult, then the court will find a duty to consult. In Binder, Justice Griffiths held that none of these exceptions applied (and that there was no legal duty to consult). Therefore, the obligation to follow the Gunning Principles could only arise if, in carrying out the public inquiry, the Disability Unit actually carried out a consultation.

In addressing this issue, Justice Griffiths adopted the analysis of Simler J in R (oao FDA et al.) v. Cabinet Office Minister [2018] EWHC 2746 (Admin) where she stated: “…whether a public body has engaged in consultation for these purposes is a question of substance and not of form. If, without using the term, a decision maker is embarking on an exercise that is in substance consultation, then this principle applies. In assessing the question of what was happening in “substance”, Judge Griffiths took into account the testimony of the Director of the Disability Unit who stated: “The investigation was not a consultation. The survey was never intended as a formal consultation exercise on any particular proposal, including the strategy. The survey, along with the other activities of the DU, were listening and information-gathering exercises undertaken as a way to better understand the lived experience of people with disabilities”. The judge, however, looked beyond that evidence and what the Disability Unit had said, particularly in press releases and public blogs, about the investigation at the time. He ruled that although initially what was said was consistent with it being only an information-gathering exercise, the link to the development of the National Strategy became clearer. He highlighted the language used, such as “We want to make sure we have enough time to get it right and undertake a comprehensive and appropriate stakeholder engagement program. People’s views and ideas will be crucial” and “We continue to listen to stakeholders to find the right areas to build a strategy that makes a real difference in the lives of people with disabilities” and “We want to create a national strategy for people with disabilities that drives positive change, with your voice at the heart of the process. Therefore, we want to place the lived experience of people with disabilities at the center of our strategy. and (compared to survey responses “Their experience and expertise have been integral to the development of the [Strategy]”. In view of all of this, Justice Griffiths concluded that there had indeed been consultation and that the public inquiry had been “at the heart” of that consultation.

After determining that there had indeed been consultation, the judge had to consider whether that consultation had been conducted properly and fairly. The applicable principles, endorsed by the Supreme Court in R (oao Moseley v Haringey London Borough Council [2014] UKSC 56)) were originally set out in Gunning: “…these basic requirements are essential… Firstly, this consultation must take place at a time when the proposals are still in the formation stage. Second, that the proposer must give sufficient reasons for any proposal to allow for intelligent thought and response. Thirdly…that sufficient time should be allowed for review and response and finally fourthly, that the product of the consultation should be carefully considered…”. It was admitted by the DWP that the public inquiry did not outline the proposed content of the national strategy or allow for any comment on specific policy proposals. In light of this, the DWP accepted that Gunning’s second criterion was not met. The judge agreed, but also felt that the format used for the survey – mostly multiple-choice questions with some open-ended questions (e.g. “Thinking about your life, what are the top 3 changes that would make your life better/or better your life?”) with a short word count limit for answers, also failed to meet the requirement to allow a “smart…answer”.

What about public bodies that want information to inform policy-making but do not intend this information-gathering exercise to be a consultation? According to one view of the Binder judgment, public bodies will simply have to be very careful in how they describe what they are doing when they are simply collecting information, in order to limit the risk of unintended consequences. Another view is that the decision goes further: one factor that appears to have prompted Judge Griffiths to consider the survey to be part of a national strategy consultation was that the information obtained from the survey clearly used in the development of the National Strategy. But this will be the case in any information-gathering exercise that precedes policy-making or strategy-setting, and the careful use of language will not circumvent this. While this is concerning, in practice it is likely that Binder will be viewed as one of those cases that arises out of his very particular facts rather than one with a broader scope.