Miriam Binder, Jean Eveleigh, Victoria Hon and Douglas Paulley v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Griffiths |
| Judgment Date | 25 January 2022 |
| Neutral Citation | [2022] EWHC 105 (Admin) |
| Docket Number | Case No: CO/1142/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 105 (Admin)
Mr Justice Griffiths
Case No: CO/1142/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephen Broach and Katherine Barnes (instructed by Bindmans LLP) for the Claimants
Sarah Hannett QC and Emily Wilsdon (instructed by Government Legal Department) for the Defendant
Hearing date: 3 November 2021
This is an application for judicial review brought with permission.
The claimants are four disabled adults and their standing to bring the claim is not disputed. They claim that the defendant failed to consult lawfully, via its UK Disability Survey (“the Survey”), before publishing a National Disability Strategy document on 21 July 2021 (“the Strategy”) and that, consequently, the Strategy itself is unlawful. I have been very sorry to learn today that the first claimant, Miriam Binder, died shortly after the hearing before me, and I send my condolences to those she leaves behind.
The relief claimed is a declaration that the Strategy is unlawful. A claim to quash the Strategy is not pursued. The claimants expect, however, that if such a declaration is made, the defendant will carry out further appropriate consultation with a view to revising the Strategy, if appropriate.
The issues
The essential points made by the claimants have remained broadly consistent but the way in which the issues have been formulated has been subject to development.
The Statement of Facts and Grounds, as amended on 24 April and 11 August 2021, now raises three Grounds, as follows:
i) Ground 1 The common law consultation fairness requirements are applicable in this instance because: (a) in carrying out the Survey and/or engaging with stakeholders, the defendant voluntarily embarked on a consultation exercise; (b) in any event, the common law required consultation because to do otherwise would result in “conspicuous unfairness”; and (c) it was irrational not to consult in circumstances where the stated purpose of the Strategy was to facilitate greater participation by disabled people in society and decision-making.
ii) Ground 2 The common law required the defendant to consult with Disabled People's Organisations (“DPOs”) on the Strategy because the failure to do so would result in “conspicuous unfairness”. Therefore, in failing to consult with DPOs (which the defendant accepts was not done), the defendant was in breach of the duty to consult.
iii) Ground 3 In carrying out the function of consulting (as the claimants contend) or information-gathering (as the defendant contends) through the Survey, the public sector equality duty imposed by section 149 of the Equality Act 2010 (“the PSED”) required the defendant to have due regard to the equalities implications of its design and implementation. There is no evidence that the defendant did so at the relevant time, such that there has been a breach of the PSED, resulting in choices about the way the Survey was carried out which risked disadvantaging disabled people. An Equality Impact Assessment carried out subsequently does not remedy the error because it fails to consider “various highly material issues”. This Ground is relied on only in relation to the Survey consultation, and not in relation to the subsequent Strategy.
Before the hearing, the parties agreed the following formulation of issues for determination:
i) By undertaking the Survey, did the defendant voluntarily embark on a consultation with the public to which the Gunning principles apply? This is a reference to the common law principles of fair consultation discussed in R v Brent London Borough Council ex parte Gunning (1985) 84 LGR 168, encapsulated by the Court of Appeal in R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213, and approved by the Supreme Court in R (Moseley) v Haringey London Borough Council [2014] UKSC 56, [2014] 1 WLR 3947.
ii) If not, did the defendant nevertheless have a duty to consult with (a) disabled people and/or (b) DPOs?
iii) If not, was the defendant's decision not to consult disabled people and/or DPOs irrational?
iv) In conducting the Survey, did the defendant breach the PSED?
At the hearing, the claimants reformulated both the Statement of Facts and Grounds analysis and the agreed issues, and addressed me under the following headings:
i) Did the defendant engage in a consultation as a matter of substance as part of her development of the Strategy?
ii) If not, was the defendant under a duty to do so, in relation to disabled people and/or DPOs?
iii) If not, was it irrational not to consult disabled people and/or DPOs?
iv) In conducting the Survey, did the defendant breach the PSED?
It is essential for the issues in any case to be formulated logically and clearly, but it is often not easy to do that. A logical and clear formulation of issues demonstrates a sound analysis. It enables all parties to engage with each other head on, rather than circling around each other without solid engagement. It also helps the judge who, unlike the parties, comes to the issues from a standing start. If the questions to be answered are identified (questions being more helpful than broad topics), and if those questions are presented in a logical order (so that related issues are worked through progressively), even the most complicated case will fall into place. There is a difference between complexity and difficulty: the shortest questions may be as hard as any to answer. Nothing much can be done about that. But a tangle of threads can always be untangled to advantage.
The issues in this case fall naturally into two: a claim alleging an unlawful failure to consult, and a claim that the PSED was breached. The first is the one which the various analyses above articulate less clearly. This is Grounds 1 and 2 of the re-amended Statement of Facts and Grounds, issues (i) to (iii) in the agreed issues, and issues (i) to (iii) in the claimants oral argument. Having heard the argument, I will approach the issues raised under the following headings:
i) Was the defendant under a duty to consult? The Statement of Facts and Grounds at Ground 1 (b) and (c) relies on “conspicuous unfairness” and/or irrationality in this respect. Ground 2 pursues the “conspicuous unfairness” point raised in Ground 1(b).
ii) If not, did the defendant voluntarily embark upon a consultation and, if she did, what if any consultation duties were thereby created?
iii) If and insofar as any consultation duties existed (as examined under (i) and (ii) above), did the Survey discharge those duties?
iv) In conducting the Survey, did the defendant breach the PSED?
Facts
Before winning the General Election on 12 December 2019, the Conservative party said in its manifesto:
“We will publish a National Strategy for Disabled People before the end of 2020. This will look at ways to improve the benefits system, opportunities and access for disabled people in terms of housing, education, transport and jobs. It will include our existing commitments to increase SEND funding and support pupils, students and adults to get careers advice, internships, and transition into work.”
Delays caused by the Coronavirus pandemic meant that the Strategy was not published until 28 July 2021.
Work on the Strategy was co-ordinated by the Disability Unit which is a cross-departmental disability team within the Cabinet Office.
On 28 January 2020, the Director of the Disability Unit wrote to the Disability Charities Consortium in advance of an initial discussion with them on 3 February 2020. The letter identified “the key policy themes” for the Strategy as “Supporting independent living, Positive attitudes and stigma, Access to justice and enforcing rights, Inclusive products and services, [and] Accessible built environment.” It said:
“We envisage taking forward parallel strands of work to realise the [Strategy], covering:
— collection and analysis of evidence and data
— engagement with disabled people and stakeholders
— engagement with Government Departments leading on key issues
— policy iteration and development
— communication
On engagement with DCC specifically, we envisage meetings at roughly monthly intervals with DCC in 2020 on different aspects of the [Strategy] NSfDP, mainly with officials but with engagement by Ministers directly at key points.”
Meetings between the Disability Unit and the Disability Charities Consortium then took place on 12 occasions, between 3 February 2020 and 25 May 2021.
A variety of other groups were also selected to participate in a number of other engagement sessions, working groups, roundtables, and joint roadshows in various parts of the UK, on various dates in 2020 and 2021, which are listed in the evidence filed by the defendant (pp 188–190 of exhibit MB1). These included (for example) 12 meetings of Regional Stakeholder Network Chairs between 4 March 2020 and 30 June 2021. The Regional Stakeholder Network was set up by the Disability Unit “to help build a picture of the lived experience of disabled people in England”, one of its purposes being “helping to develop the [Strategy]” (press release of 2 April 2020).
A number of written submissions were also received from a variety of individuals and organisations in 2020 and 2021 in response to the announcement of the forthcoming Strategy. These too are listed, although only by date and source, in the evidence (pp 61–62 of exhibit MB1).
On 2 April 2020, the Disability Unit issued a Press Release headlined “A National Strategy for Disabled People to remove barriers and increase participation” which said “The Cabinet Office's Disability Unit is working across government and with disabled...
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