Case Note: challenging consultations in judicial review proceedings - R (oao Binder and others) v Secretary of State for Work and Pensions [2022] EWHC 105 (Admin)

10 February 2022

The Administrative Court has recently upheld a challenge to a ‘consultation’ undertaken by the Department for Work and Pensions (DWP) prior to the publication of the National Disability Strategy. Strikingly the DWP gave evidence that it had not been intending to carry out a consultation – but Mr Justice Griffiths held that, as a matter of substance (as opposed to intention), there had in fact been a consultation; and that, (unsurprisingly as it was not a standard that it thought it had to meet) the DWP had failed to meet the legal requirements for a 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 had said that, if elected, it would publish a “National Strategy for Disabled People before the end of 2020”. Following the election, work on this strategy was co-ordinated by the Disability Unit, a cross departmental team within the Cabinet Office. During the course of 2020 it gathered information, including through a dozen meetings with the Disability Charities Consortium as well as with other stakeholder groups. On 15 January 2021 the Disability Unit launched what it called a “public survey”, the aim of which was said to be “to gather views and experiences for the National Strategy of Disabled People”, although it was also said that the survey “…is a part of our ongoing consultation”. Initially the public survey was intended to remain open for 4 weeks but, in the event, it did not close until 23 April 2021. In July 2021 the National Strategy was published.
 
In the judicial review proceedings the claimants, four disabled adults, claimed that the DWP had failed to consult lawfully via the public survey and that, consequently, the National Strategy was unlawful. The only relief sought was a declaration – but the claimants’ expectation was that if they were successful, the DWP would carry out a further appropriate consultation and then, if appropriate, revise the National Strategy.
 
It is well established that at common law that (i) there is no general duty on public bodies to consult before they take decisions but that (ii) when public bodies do consult, they must do so fairly, in accordance with the so called Gunning principles (first coined in the case of 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 it would be conspicuously unfair not to consult, then the Court will find a duty to consult. In Binder, Mr Justice Griffiths held that none of those exceptions applied (and that there was no statutory obligation to consult). As a result, the only way the obligation to follow the Gunning principles could arise was if, in conducting the public survey, the Disability Unit was actually conducting a consultation.  
 
In approaching that question Mr Justice Griffiths adopted the analysis of Simler J in R (oao FDA and others) v Minister for the Cabinet Office [2018] EWHC 2746 (Admin) where she held: “…the question whether a public body has embarked on consultation for these purposes is a matter of substance and not form. If, without using the term, a decision-maker embarks on an exercise that is in substance consultation then this principle applies.” In assessing the question of what was happening in ‘substance’ Mr Justice Griffiths took into account evidence from the Director of the Disability Unit who said: “ The Survey was not a consultation. The Survey was never intended to be a formal consultation exercise on  any particular proposal, notably the Strategy. The Survey, together with the DU’s other activities, were listening and insight gathering exercises undertaken as a means to understand more about the lived experience of disabled people”. The judge, however, looked beyond that evidence and at what the Disability Unit had been saying, in particular in press releases and public blogs, about the survey at the time. He ruled that although initially what was said was consistent with this being just an information gathering exercise  over time the link with the development of the National Strategy became clearer. He emphasised the language used, such as “ 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” and “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” and “We want to create a National Strategy for Disabled People which drives positive change, with your voice at the heart of the process. Therefore, we want to have the lived experience of disabled people at the centre of our strategy..” and (in relation to responses to the survey “Their experience and expertise have been integral to the development of the [Strategy]”. Taking all that into account Mr Justice Griffiths concluded that there had actually been a consultation and that the public survey had been “at the heart” of that consultation.
 
After determining that there had in fact been a consultation, the judge had to consider whether that consultation had been conducted properly and fairly. The applicable principles, approved 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…First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposals to permit of intelligent consideration and response. Third…that adequate time must be given for consideration and response and finally fourth, that the product of consultation must be conscientiously taken into account…”. It was conceded by the DWP that the public survey had not outlined the proposed content of the National Strategy nor did it allow any comment on any specific policy proposals. In light of that, the DWP accepted that the second Gunning criterion was not met. The judge agreed, but also held that the format used for the survey – primarily multiple choice questions with a few open ended questions (eg “Thinking about your life, what are the top 3 changes that would make your life better/or improve your life?”) with a short word count limit for answers, also failed to meet the requirement to allow “intelligent…response”.
 
Where does this leave public bodies who want to obtain information in order to inform policy development but who do not intend for that information gathering exercise to be a consultation? On one view of the decision in Binder, public bodies will just have to be very careful in how they describe what it is that they are doing when simply gathering information, so as to limit the risk of unintended consequences. Another view is that the decision is more far reaching: one factor that seems to have influenced Mr Justice Griffiths in holding that the survey was a part of a consultation on the National Strategy was that information obtained from the survey was evidently used in the development of the National Strategy. But that will be the case in any information gathering exercise that precedes policy making or strategy setting and careful use of language will not get round that. Although this is a concern, in practice it is likely that Binder will be regarded as one of those cases that is explicable by reason of its very particular facts rather than one that has broader significance.

FURTHER INFORMATION

For further information on the issues raised in this blog, please contact Adam Chapman in our Public Law team.

 

ABOUT THE AUTHOR

Adam Chapman joined Kingsley Napley in January 2010 as a partner in the Public Law team. He has nearly 30 years experience as a public lawyer and previously spent most of his career in central government, working at the Treasury Solicitor’s Department and at the Attorney General’s Office.

 

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