A consultation by any other name

Binder & Ors v Secretary of State for Work And Pensions [2022] EWHC 105 was a legal challenge to the UK Disability Survey (“the Survey”), on the grounds of unlawful consultation and failure to comply with the public sector equality duty (section 149 of the Equality Act 2010). It succeeded on the consultation ground.

The background to the case is this: in its election manifesto, the Conservative Party promised to publish the National Strategy for Disabled People before the end of 2020. On 15 January 2021, the Cabinet Office Disability Unit launched the Survey to “gather views and experiences” from disabled people, in order to inform the as yet unpublished National Strategy for Disabled People (now the National Disability Strategy, published July 2021).

Public bodies are often deeply concerned about legal challenges to their consultations. This concern is entirely justified. There are several well-known requirements of a lawful consultation. If these requirements are not met, the consultation will be unlawful.

These requirements were summarised by Hodgson J in R v Brent London Borough Council ex p Gunning (1985) 84 LGR 168. In this case, the judge quashed Brent LBC’s decision to close two schools on the ground that the manner of its prior consultation had been unlawful. In doing so, the judge adopted the submissions of the appellant’s counsel, Stephen Sedley QC (later a Court of Appeal judge). The principles have since become known as the Sedley/Gunning principles. They were set out in that case as follows (emphasis added):

“Mr Sedley submits that these basic requirements are essential if the consultation process is to have a sensible content. 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 proposal 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 in finalising any statutory proposals.”

This statement of the principles had an enormous legal impact. Second in importance only to his magisterial contribution to the law of legal paperwork, Stephen Sedley’s contribution to the law of consultation has been recited and endorsed many times since, notably by the Supreme Court in R(Moseley) v Haringey London Borough Council [2014] UKSC 56. Failure to comply with any of these principles is a potential line of legal challenge. The principles are all fairly strict, and apply even if there is no statutory duty to consult.

The National Disability Survey did not comply with the second Sedley/Gunning requirement. It did not comply in two senses: it did not give much information to consultees, nor did it allow much of an intelligent response in its character-limiting online reply boxes.

In recognition of this problem, the Secretary of State did not try to argue that the Survey was a lawful consultation. Instead, the Secretary of State argued the Survey was not a consultation at all. This was despite the announcements surrounding the Survey saying things like “We want to place the lived experiences of disabled people at the centre of our approach”, and “your views will be used to inform the delivery of the plans we set out”, and “we hope to collect a range of viewpoints and opinions from a variety of different people”, and “To help the government with understanding the barriers that disabled people face and what it may need to focus upon to improve the lives of disabled people, we need to hear about your views and know more about your experiences”, and (in something of a Freudian slip) “This is a part of our ongoing consultation and marks the start of our insight gathering.”

The Court did not agree with the Secretary of State. It found that “When the Survey was launched, the link between it and the Strategy was made perfectly explicit”. In assessing whether the Survey was a consultation or not, what was needed was “an assessment of substance rather than form”: and the form all pointed one way. It was a consultation, and so it unlawfully failed to comply with the second Sedley/Gunning principle.

This case therefore emphasises the fact that when it comes to consultation, descriptors matter less than the substance of what is being done. And if a consultation is being undertaken, it must comply with the applicable legal principles.

One cannot consult in Incognito Mode: the Court is always watching.

Alex Shattock is a barrister at Landmark Chambers.