Secretary of State for Work and Pensions v Eveleigh and Others (Formerly Binder and Others)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing,Lord Justice Bean,Lady Justice Macur |
| Judgment Date | 11 July 2023 |
| Neutral Citation | [2023] EWCA Civ 810 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-000284 |
[2023] EWCA Civ 810
Lady Justice Macur
Lord Justice Bean
and
Lady Justice Elisabeth Laing
Case No: CA-2022-000284
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION (ADMINISTRATIVE COURT AND PLANNING COURT)
Mr Justice Griffiths
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Eadie KC, Sarah Hannett KC and Emily Wilsdon (instructed by The Treasury Solicitor) for the Appellant
Jenni Richards KC, Stephen Broach and Katherine Barnes (instructed by Bindmans LLP) for the Respondents
Hearing date: 28 June 2023
Approved Judgment
This judgment was handed down remotely at 11.00am on 11 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is an appeal from an order of Griffiths J (‘the Judge’). The Judge allowed an application for judicial review of the National Disability Strategy (‘the Strategy’), published on 21 July 2021 by the Secretary of State for Work and Pensions (‘the Secretary of State’). The Judge held that a UK Disability Survey (‘the Survey’) which preceded the Strategy, was, at common law, a ‘consultation’. The ‘consultation’ attracted various obligations which the Secretary of State had breached. The Secretary of State now appeals against that order with the permission of Whipple LJ.
The Secretary of State was represented by Sir James Eadie KC, Ms Hannett KC and Ms Wilsdon. The respondents (the claimants below) were represented by Ms Richards KC, Mr Broach, and Ms Barnes. Ms Barnes did not attend the hearing. Sir James Eadie told us that she had just had a baby girl. I thank counsel for their oral and written submissions.
Paragraph references are to the Judge's judgment, or, if I am referring to an authority, to the paragraph numbers in that authority, unless I say otherwise. I will refer to the claimants below as ‘the claimants’. Three cases are referred to repeatedly in the judgment and in the parties' arguments. They are R v Brent London Borough Council ex p Gunning (1985) 84 LGR 168 (‘ Gunning’), R v North East Devon Health Authority ex p Coughlan [2001] QB 213 (‘ Coughlan’) and R (Moseley) v Haringey London Borough Council [2014] UKSC 56; [2014] 1 WLR 3947 (‘ Moseley’).
The issue raised by the first ground of appeal is whether the Judge was right to hold that the decision to use the Survey attracted any legal obligations, and that the Secretary of State not having realised that her conduct had attracted such obligations, she then breached those obligations. A second issue is raised by the Secretary of State's application to amend her grounds of appeal to add a further ground and for permission to appeal on that ground. I will consider that application in paragraphs 91–93, below.
For the reasons given in this judgment I have decided that the Judge was wrong to decide that the Survey was subject to the requirements first described in Gunning (‘the Gunning requirements’). He was therefore also wrong to hold that the Secretary of State acted unlawfully by not complying with those requirements, and wrong to quash the Strategy.
This judgment, and my summaries of the Judge's judgment, and of the parties' submissions will be easier to understand if I start by considering some general principles which were not in dispute, and the three authorities to which I have just referred in paragraph 3, above.
The general principles and the authorities
The parties agree that the common law does not impose a general obligation to ‘consult’. There are three potential sources of obligations to ‘consult’. A public body will be obliged to consult if there is a statutory duty to do so, if there is a legitimate expectation that it will do so (whether because of a promise, or a sufficiently consistent past practice), and if it would be conspicuously unfair not to consult.
Gunning
The subject of Gunning was the publication of a proposal by a local education authority to close four schools and to merge them with other schools. The authority's decision was challenged on many grounds, most of which were upheld by Hodgson J. One aspect of the challenge related to consultation. Parents were sent a brief consultation document which had very limited information about the costs of the proposal. Most parents received the document on 4 or 5 June. They were required to respond to it by 15 June. The authority's education committee noted that the consultation was wholly inadequate because it had not explained the proposal or given the public a proper opportunity to consider it. The committee recommended that the authority consider alternatives. The proposals adopted by the authority on 12 July differed from the proposals which had been the subject of the consultation. The proposals were published for the approval of the Secretary of State and the applicants applied to quash them.
At page 189, Hodgson J recorded the submissions of counsel for the applicants, Mr Stephen Sedley QC (as he then was). He submitted that four ‘basic requirements were essential if the consultation process is to have a sensible content’. They were that, first, ‘the consultation must be at a time when the proposals are still at formative stage’. Second, ‘the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response’. Third, ‘adequate time must be given for consideration and response’. Fourth, ‘the product of the consultation must be conscientiously taken into account in finalising any statutory proposals’.
Hodgson J held that although the authority did not have a statutory obligation to consult parents, they did have a legitimate expectation that they would be consulted. He held that the consultation document was inadequate and misleading, and that the period for the consultation was unreasonably short. He also held that because the proposals which were adopted differed materially from the proposals which were the subject of the consultation, the parents should be consulted again. He described the consultation process as ‘woefully deficient’. He did not expressly adopt Mr Sedley's submissions, but it is clear from the judgment that they influenced his approach.
Coughlan
In Coughlan, a local health authority decided to close a small home in which patients with serious chronic conditions were supported by the NHS. Those patients had been promised a ‘home for life’ there. They had also been promised that they would be consulted about proposals to close the home and to move them into the care of a local authority. Lord Woolf MR gave the judgment of this court. Sedley LJ (as he had by then become) was part of the constitution.
Paragraphs 108–117 of the judgment are headed ‘Consultation’. In paragraph 108, Lord Woolf said, ‘It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon, it must be carried out properly’. He then explained what was needed for a consultation to ‘be proper’. He adopted the four tests which were part of Mr Sedley's argument in Gunning and referred to that decision. He then considered what he described as ‘the machinery of consultation’ in Ms Coughlan's case. He explained that Hidden J had held, at first instance, that ‘none of the four Gunning criteria were met’. Lord Woolf examined the points which had impressed Hidden J and concluded that although the consultation could be criticised, ‘it was not flawed by significant non-compliance with the Gunning criteria’.
In paragraph 112, Lord Woolf accepted the authority's submission that there was no requirement to consult the claimant about material which had been elicited during the consultation. He added, ‘…consultation is not litigation; the consulting authority is not required to publicise every submission it receives (or absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this’.
Moseley
Section 13A of the Local Government Finance Act 1992 (‘the 1992 Act’) replaced council tax benefit with council tax reduction schemes, which were to be decided on locally by each billing authority. Paragraph 3(c) of Schedule 1A to the 1992 Act obliged a billing authority, before it made a scheme, to consult ‘such other persons as it considers are likely to have an interest in the operation of the scheme’. The billing authority published and consulted on a draft scheme. During the consultation period, the government announced a transitional grant scheme (‘the TGS’) for authorities whose schemes met certain criteria. After the end of that period, officers recommended that the authority should not adopt a scheme which complied with the criteria in the TGS. The authority adopted the draft scheme. The claimant challenged the scheme, arguing that the consultation was unfair and unlawful because consultees had not been told that there were alternatives to the draft scheme and that they should have been told about the availability of the TGS. The challenge was dismissed by the Divisional Court and by this court.
The Supreme Court allowed the appeal. Lord Wilson gave a judgment with which Lord Kerr agreed. Lord Reed gave a judgment with which Baroness Hale and Lord Clarke agreed (see further, paragraph 23, below).
Lord Wilson described the consultation in paragraphs 16–22. He...
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Courts Consider Public Authorities' Duty To Consult
...did not meet the requirements of a fair consultation (R (on the application of Secretary of State for Work and Pensions) v Eveleigh [2023] EWCA Civ 810). In the second decision, the High Court found that the Secretary of State for Business and Trade failed to comply with his statutory duty ......