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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Binder & Ors v Secretary of State for Work And Pensions  EWHC 105 (Admin) (25 January 2022)
Cite as:  EWHC 105 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| MIRIAM BINDER, JEAN EVELEIGH, VICTORIA HON AND DOUGLAS PAULLEY
|- and -
|SECRETARY OF STATE FOR WORK AND PENSIONS
Sarah Hannett QC and Emily Wilsdon (instructed by Government Legal Department) for the Defendant
Hearing date: 3 November 2021
Crown Copyright ©
Mr Justice Griffiths :
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.
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  QB 213, and approved by the Supreme Court in R (Moseley) v Haringey London Borough Council  UKSC 56,  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?
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?
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?
"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."
"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
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.
"The Cabinet Office's Disability Unit is working with government colleagues, disabled people, disabled people's organisations, charities and businesses to achieve practical changes that will remove barriers and increase participation.
A key focus is the development of a National Strategy for Disabled People. This will put fairness at the heart of government work, to level up opportunity so everyone can fully participate in the life of this country.
The strategy will build on evidence and data, and critically on insights from the lived experience of disabled people. It will include existing commitments, such as to increase special educational needs and disability funding and support pupils, students and adults to get careers advice, internships and transition into work, whilst identifying further opportunities to improve things.
Our objectives for the National Strategy for Disabled People are to:
● develop a positive and clear vision on disability which is owned right across government
● make practical changes to policies which strengthen disabled people's ability to participate fully in society
● ensure lived experience underpins policies by identifying what matters most to disabled people
● strengthen the ways in which we listen to disabled people and disabled people's organisations, using these insights to drive real change
● improve the quality of evidence and data and use it to support policies and how we deliver them
As the coronavirus pandemic is the current priority for the government, we are reviewing our plans for the development of the strategy. 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 as we work with colleagues across government, disabled people and other stakeholders on possible solutions."
"… will be built on:
● improved data and evidence
● engagement with disabled people
● insight from lived experiences"
"Our early discussions with disability stakeholders highlighted a number of major themes that sit across departmental responsibilities:
● housing and the wider built environment
● the justice system
● the ability to live independently
● accessible products and services (including assistive technology)
● perceptions of disabled people
This is not a complete list. 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."
"We're also stepping up further engagement with our stakeholders. We'll use technology, including social media, to ensure that we collect thoughts directly from people who are not represented by existing groups. Our stakeholder groups have been working with us to provide insight on key issues for disabled people. We have regular meetings to ensure that disabled people's voices are heard, from a range of geographical regions, and varying experiences of disability.
Our stakeholder groups include:
● the Disabled People's Organisation forum
● the Disability Charities Consortium
● the Regional Stakeholder Network
● Disability Access Ambassadors
We value insights from our stakeholders, who provide lived experience and expert views to guide our National Strategy. This is a part of our programme of engagement which will continue even after the Strategy is published."
"We'll spend the next few months gathering thoughts, testing approaches and ensuring that we loop in views from the widest possible range of stakeholders and citizens."
"The Disability Unit in the Cabinet Office is working with government colleagues, disabled people, disabled people's organisations, charities and businesses to develop and deliver a National Strategy for Disabled People. We intend to publish the Strategy in Spring 2021.
Despite the unprecedented challenge we face as a nation, this Government is committed to delivering an ambitious National Strategy for Disabled People with expert advice and the lived experience of disabled people at its heart.
The Strategy will make practical changes to policies which strengthen disabled people's ability to participate fully in society and will place fairness at the heart of government work on disability, to level up opportunity so everyone can reach their potential and participate in life in this country.
We want to place the lived experiences of disabled people at the centre of our approach, as well as views from people across the country including those caring for and related to disabled people, as well as the general public.
Today, we are launching a public survey to gather views. This Survey continues the engagement that was carried out across government throughout 2020, and continues to be this year. It includes engagement nationally and across the regions with a diverse network of stakeholders, including leading charities, disabled people's organisations and individuals from all parts of society that are affected by disability.
The survey is hosted on Citizen Space. If you share your views by 28 February, your views will inform the development of the National Strategy for Disabled People, but thereafter we will continue to listen. The Survey will remain open until 23 April, and your views will be used to inform the delivery of the plans we set out.
The Survey is fully accessible to ensure as many people as possible have their voices heard. It is available in Easy Read, BSL and written responses can be sent to:
"The National Strategy for Disabled People is an ambitious piece of work that will support disabled people in all aspects and phases of their life. The Disability Unit is working with many groups of people to develop the National Strategy, including disabled people, disabled people's organisations, charities, businesses and across government. By putting your lived experience first, we want to understand and dismantle the barriers holding disabled people back from realising their full potential. The Strategy is due to be published in Spring 2021.
COVID-19 has been an unprecedented challenge for the nation. Despite this, work has continued to ensure that we can deliver an ambitious Strategy that improves opportunities and outcomes for disabled people. As the country builds back, we're determined that no one is left behind.
We want to deliver practical action through policies which will make a real difference to disabled people's day-to-day lives. This will continue to place fairness at the heart of government work. It will mean that disabled people can participate fully in society.
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. We would also like to hear the views of carers, relatives of disabled people and those of the general public.
How can you join in?
We are initially launching an online survey to gather these views, and we would like you to contribute. The survey will cover different topics that are important to disabled people and understanding the barriers in their way. This is a part of our ongoing consultation and marks the start of our insight gathering.
We would like as many people as possible to contribute to this survey. The more people we hear from, the better our National Strategy will reflect the needs of disabled people in our society.
We have already collaborated with various interested groups, including organisations representing disabled people. Our insight gathering survey will have the ability to go straight to people we want to reach, so we can hear from you first hand. We will continue this work as we launch the National Strategy, as listening to your views is important to us throughout the process.
A structured conversation
Our aim is to lead a structured conversation to hear about people's daily lives. This will inform our National Strategy with the lived experience of the people most affected. This includes disabled people, their carers, family and friends.
We want to help dismantle and challenge unhelpful perceptions, and enact positive change, and for that reason we will also have a conversation with the general public about their interaction with disability issues and disabled people.
As we progress with our insight gathering, we hope to collect a range of viewpoints and opinions from a variety of different people. One way we can do this is through our survey. Another way we will listen to people's viewpoints is through focus groups or workshops. These conversations will continue once the National Strategy is published.
The survey will be available in easy read or plain English, British Sign Language, Braille and Welsh. It will be tested using voiceover software and other assistive technology.
Asking people for their views does not stop here. This is just the first opportunity to get your views heard. We will be seeking people's views into the future, even once the National Strategy has been published. This is part of a much bigger programme of engagement which will not end when the National Strategy is launched as we know that to achieve lasting change, our commitment must be ongoing and collaborative."
Welcome to Citizen Space. This site will help you find and participate in consultations that interest you."
"The Disability Unit at the Cabinet Office is developing a National Strategy for Disabled People. Publication is planned for Spring 2021.
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.
This survey will ask about your life experiences either as a disabled person, a carer or parent or as someone who has an interest in disability issues.
Many people have had big changes in their lives as a result of the COVID-19 pandemic and there will be an opportunity at the end of the survey to state if your life has changed notably due to COVID-19, and in what ways. However, please answer other questions thinking about yourself, your own experiences and your current situation.
The survey will be open until 23 April 2021. Responses received before 28 February 2021 will inform the development of the National Strategy, while those received after this date used to inform its delivery."
i) Question 109: "Briefly detail how your experiences now are different to prior to the COVID 19 pandemic and government response, relating to all the topic(s) you previously selected" (250 word limit).
ii) Question 111: "Thinking about your life, what are the top 3 changes that would make your life better / or improve your life?" (100 word limit).
iii) Question 112: "If you feel we have missed any issues or barriers, can you please set these out here?" (100 word limit).
iv) Question 113: "Building on your experience or insights, can you suggest any solutions to issues raised or how to remove barriers?" (100 words limit).
"…none of the Survey, the Roundtables or any of the [Disability Unit's] other engagement activities were intended to elicit views on detailed policy proposals. Policy proposals from Government departments were not shared. Given the broad scope of the themes discussed across a great range of Government business this would in any event have been practically impossible. Rather, the purpose of the IGP was to gather information so that the DU, and the Government more generally, could assess whether the commitments to be included in the Strategy would likely meet the concerns and priorities of disabled people, and therefore whether to pursue them or amend them."
"This submission provides an assessment of the extent to which the policies in the National Strategy for Disabled People will address a) issues highlighted in the evidence base and b) priority areas for action raised by stakeholders. It draws on data from the insight gathering phase, which ran from January - March 2021, specifically 14,500 responses to the UK Disability Survey and 5 insight gathering roundtables."
"The UK Disability Survey and the 11 insight gathering roundtables have proved an extremely valuable source of additional and mainly confirmatory information on the issues that disabled people, carers and families face in everyday life. We have completed an initial assessment of these. Alongside this, we have completed further structured analyses of our core evidence, ethnographic research, stakeholder submissions, and the outputs from other local, national and targeted engagement we have undertaken. All these sources have been compared and provide a consistent picture of disabled people's lives, needs and experiences.
With your agreement, we plan to publish a full analysis of responses to the Survey by around June…"
"We have carried out the biggest listening exercise with disabled people in recent history, with 14,000 people responding to our UK Disability Survey. As a result, this strategy is far more wide-ranging than approaches of the past. Informed by what we have heard, the strategy sets out… actions…"
"A huge range of organisations and individuals have shaped the development of this strategy.
The UK Disability Survey launched in January 2021 and ran until April. Thousands of people responded to inform this strategy…
We are grateful to everyone who has taken the time to share their thoughts on what we should include in this strategy, whether through completing the UK Disability Survey, attending meetings or events, or engaging through social media and correspondence. Their expertise and insights have been integral to the development of the strategy."
"Part 1 sets out immediate commitments we will make to improve every part of a disabled person's day…
Part 2 sets out ambitious changes to how the government works with and for disabled people into the future. We commit to putting disabled people at the heart of government policy-making and service delivery – laying the foundations for longer term, transformative change.
Part 3 summarises clearly the actions each government department will take as part of this strategy to improve disabled people's everyday lives. This section makes clear which department is responsible for which commitment. Each department commits to play their part, with ministerial champions setting out how they will personally drive progress."
(i) Was the defendant under a duty to consult?
"The following general principles can be derived from the authorities:
1. There is no general duty to consult at Common Law. The government of the country would grind to a halt if every decision-maker were required in every case to consult everyone who might be affected by his decision. (Harrow Community Support Limited) v. The Secretary of State for Defence  EWHC 1921 (Admin) at paragraph , per Haddon-Cave J).
2. There are four main circumstances where a duty to consult may arise. First, where there is a statutory duty to consult. Second, where there has been a promise to consult. Third, where there has been an established practice of consultation. Fourth, where, in exceptional cases, a failure to consult would lead to conspicuous unfairness. Absent these factors, there will be no obligation on a public body to consult (R (Cheshire East Borough Council) v. Secretary of State for Environment, Food and Rural Affairs  EWHC 1975 (Admin) at paragraphs [68-82], especially at ).
3. The Common Law will be slow to require a public body to engage in consultation where there has been no assurance, either of consultation (procedural expectation), or as to the continuance of a policy to consult (substantive expectation) ((R Bhatt Murphy) v Independent Assessor  EWCA Civ 755, at paragraphs  and , per Laws LJ).
4. A duty to consult, i.e. in relation to measures which may adversely affect an identified interest group or sector of society, is not open-ended. The duty must have defined limits which hold good for all such measures (R (BAPIO Ltd) v Secretary of State for the Home Department  EWCA Civ 1139 at paragraphs -, per Sedley LJ).
5. The Common Law will not require consultation as a condition of the exercise of a statutory function where a duty to consult would require a specificity which the courts cannot furnish without assuming the role of a legislator (R (BAPIO Ltd) (supra) at paragraph , per Sedley LJ).
6. The courts should not add a burden of consultation which the democratically elected body decided not to impose (R (London Borough of Hillingdon) v. The Lord Chancellor  EWHC 2683 (QB)).
7. The Common Law will, however, supply the omissions of the legislature by importing Common Law principles of fairness, good faith and consultation where it is necessary to do, e.g. in sparse Victoria statutes (Board of Education v Rice  AC 179, at page 182, per Lord Loreburn LC) (see further above).
8. Where a public authority charged with a duty of making a decision promises to follow a certain procedure before reaching that decision, good administration requires that it should be bound by its undertaking as to procedure provided that this does not conflict with the authority's statutory duty (Attorney-General for Hong Kong v Ng Yuen Shiu  AC 629, especially at page 638 G).
9. The doctrine of legitimate expectation does not embrace expectations arising (merely) from the scale or context of particular decisions, since otherwise the duty of consultation would be entirely open-ended and no public authority could tell with any confidence in which circumstances a duty of consultation was be cast upon them (In Re Westminster City Council  AC 668, HL, at 692, per Lord Bridge).
10. A legitimate expectation may be created by an express representation that there will be consultation (R (Nadarajah) v Secretary of State for the Home Department  EWCA 1768 Civ), or a practice of the requisite clarity, unequivocality and unconditionality (R (Davies) v HMRC  1 WLR 2625 at paragraphs  and , per Lord Wilson).
11. Even where a requisite legitimate expectation is created, it must further be shown that there would be unfairness amounting to an abuse of power for the public authority not to be held to its promise (R (Coughlan) v. North and East Devon Health Authority  1 QB 213 at paragraph  per Lord Woolf MR)."
"In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations."
(ii) If not, did the defendant voluntarily embark upon a consultation and, if she did, what if any consultation duties were thereby created?
"…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."
Lord Woolf then summarised what was required for it to be carried out properly, citing R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168.
"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 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."
"…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 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."
(iii) If and insofar as any consultation duties existed (as examined under (i) and (ii) above), did the Survey discharge those duties?
"The defendant breached the second Gunning criterion because (a) the information provided to respondents as part of the consultation documentation was insufficient; and/or, (b) the consultation document was designed in such a way that it precluded proper and effective response. Further or alternatively, the questions posed by the consultation document were irrational because they did not correspond to the purpose of the consultation."
(iv) In conducting the Survey, did the defendant breach the PSED?
149 Public sector equality duty
(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, (…) and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(7) The relevant protected characteristics are—
i) There is no evidence that the defendant was "clear precisely what the equality implications" of the Survey were, as required by R (Harley and Moore) v Secretary of State for Business, Innovation and Skills  EWHC 01 (Admin) per Elias LJ at para 78.
ii) The defendant did not pay "due regard" to the particular needs of disabled people completing the Survey, as required by section 149(1) and (3) of the Equality Act.
i) The Survey was online only and (it is said) disabled people were more likely to be unable to access the internet than non-disabled people. This is a proposition which may or may not be true, but there was no evidence to support it.
ii) The Easy Read materials, on the other hand, could not be submitted online, and therefore required access to a printer at a time when most public services were shut due to the pandemic. Again, however, there was no objective or quantitative evidence to support the proposition that disabled people had less access to printers (whether their own or not) compared with non-disabled people during the pandemic or otherwise. The claimants' skeleton argument relied on the minutes of a meeting of the Disability Unit and the Disability Charities Consortium on 23 March 2021, which said "the DCC would want to be a critical friend and help with the issues raised. In particular, there were issues for people with learning disabilities with no way to complete an Easy Read version online"; to which the Minister responded by asking the DCC "to feed back specifics on improving accessibility… so it can be got right." That is not a point about access to a printer. The Easy Read materials were not, in the event, submitted online and this appears to have been consistent with the point raised by the DCC rather than inconsistent with it. The evidence shows that the Easy Read version could be downloaded online but there were technical difficulties in making it editable online which could not be solved in the time available.
iii) No version of the Survey was produced for the DPOs, since the various versions of the Survey were directed at disabled people, carers and the general public. The Survey was, however, a well-publicised exercise open to anyone who cared to complete it online and this would include both members and official representatives or spokespeople for DPOs. In any case, it is not clear how this complaint can be presented as a breach of the PSED.
iv) The six-week time limit for responses to the Survey is said, at least potentially, to have prejudiced people with learning disabilities or others who have difficulty in processing information. However, a period of six weeks for completion of a survey of this nature appears to be sufficient even for those with difficulty in processing information for whatever reason. There was no evidence of anyone who wished to complete the Survey finding themselves unable to do so because of the deadline and because of their disability.