Consulting is more than listening: the High Court rules DWP disability process unlawful
By Rory Coonan
On 25th January 2022 a judgement handed down in the High Court found the department of work and pensions (DWP) had failed to consult disabled people adequately before publishing the national disability strategy. The strategy includes polices for supported housing and care
The judge, Mr Justice Griffiths, considered an application for judicial review by four disabled people. The judge found that the government’s decision to publish the national disability strategy was unlawful primarily because of inadequate consultation. However, on its merits the national disability strategy was not quashed. Nonetheless, the fresh consultation ordered by the Court may cause the national strategy to be changed. The government’s attempt to appeal against the decision was refused.
The DWP exercise, which was also trailed as a ‘consultation’, was apparently intended by officials to help them formulate their plans for the national strategy. But critics argued that disabled people were entitled to be consulted on the strategy itself before it was completed. This sorry tale boils down to: “when is a consultation not a consultation?” Answer: “when it’s a listening and insight gathering exercise”. The botched process (and simultaneous foot-dragging by the DWP on publishing a disability benefits report – see below) underscores a widespread feeling that the interests of disabled people, including those with learning disabilities, are not taken seriously. Coral Thinking examines the background to the case.
The Strategy Promise
The Conservative party manifesto before the 2019 general election said:
“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, existing 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.”
(In fact, the strategy was delayed until July 2021 due to the Covid 19 pandemic.) For any national disability strategy to carry conviction it must command the support of disabled people, their families, organisations and the wider public. Those who are consulted in a genuine consultation surely need to see in advance plans in such detail that they can make informed and educated replies to them, and that a reasonable amount of time should be allowed for this to happen.
The government’s disability ‘listening exercise’ and opinion Survey (also referred to by its authors as a ‘consultation’) emphasised the weight attached to the ‘lived experience’ of disabled people (is there any other?). This phrase was repeated often by the disability unit of the Cabinet Office in blogs, in other publications and in evidence. Some criticism was levelled at constraints imposed by responses to the Survey. Easy Read materials could not be submitted online and required a printer. To their credit, ministers tried to get access improved. It was the middle of the Covid 19 pandemic. They made honest attempts to gauge the strength of feeling about daily life as a disabled person.
However, they did not consult on concrete strategies. Details of proposals emerging from government departments for the strategy were not shared during the information gathering phase. More targeted surveys were planned. They were not carried out. Marcus Bell, at the time head of the government’s disability unit, said in evidence on behalf of the defendant, the secretary of state Therese Coffey:
“The Survey was not a consultation. The Survey was never intended to be a formal consultation exercise on any proposal, notably the Strategy. [They were] listening and insight gathering exercises undertaken as a means to understand more about the lived experience of disabled people.”
Gunning for Gunning: consultation is not a secret process
The common law does not impose any general duty on decision-makers to consult in advance the people who may be affected by their decisions. In this case the judge found there was also no statutory obligation to consult. But having voluntarily embarked on a substantial (if not formal) process of consultation, certain obligations were set in motion. The government ought to have followed principles of fair and effective consultation known as the Gunning principles or criteria. They are not a secret: they have been endorsed by the Supreme Court.
Gunning principles (derived from Gunning v. London Borough of Brent [1985]) are common law principles of fair consultation. They say:
consultation must take place when the proposal is still at a formative stage
sufficient reasons must be put forward for the proposal to allow for intelligent consideration and response
adequate time must be given for consideration and response; and
the results of the consultation should be taken into account conscientiously.
An open mind does not mean an empty mind
The government could first have drafted a national disability strategy and consulted on that. But it did not. It could have consulted (and still could) on its preferred options, provided its mind is genuinely receptive to alteration. As a lawyer put it in a 2011 case (Royal Brompton Hospital v. Joint Committee of Primary Care Trusts): “to have an open mind does not mean an empty mind.”
There is still time for the DWP to explore new ways of broadening public engagement when consulting on its national disability strategy proposals. But don’t hold your breath. The department is once again on the naughty step. The work and pensions select committee of the House of Commons has invoked rare parliamentary powers. It has forced publication of a government-commissioned report into disabled peoples’ experience of the benefits system. The report makes for grim reading. The DWP had ignored a ‘last warning’ in December 2021 to publish it. Their mind appears not so much open as firmly shut. It has taken cross-party support in parliament and the courts to prise it open. Disabled people deserve better.