Judges allows government appeal over quashing of National Disability Strategy

The Court of Appeal has overturned a ruling that the Government’s National Disability Strategy should be quashed as it was developed without meeting legal obligations on consultation.

Lady Justice Elisabeth Laing said Griffiths J had allowed an application for judicial review of the Secretary of State for Work and Pensions’ strategy having held that a UK Disability Survey which preceded it, was, at common law, a ‘consultation’, which attracted various obligations which the Secretary of State had breached.

The Secretary of State appealed against Griffiths J’s order on the ground it had not been right to hold that the decision to use a survey of public views attracted any legal obligations that the Secretary of State had breached.

In Secretary of State for Work And Pensions v Eveleigh & Ors (Rev1) [2023] EWCA Civ 810 Elisabeth Laing LJ said: “I have decided that the judge was wrong to decide that the survey was subject to the requirements first described in Gunning [R v Brent London Borough Council ex p Gunning (1985) 84 LGR 168]

“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.”

She said common law does not impose a general obligation to consult and obligations to do so arise only if there is a statutory duty to do so, if there is a legitimate expectation or if it would be conspicuously unfair not to consult.

The judge noted there had been many surveys, discussions, invitations to submit evidence and research carried out to inform the strategy.

Elisabeth Laing LJ said: “In my judgment, the strategy had not reached a stage at which it could conceivably have been the subject of a 'consultation' complying with the Gunning criteria.

"It is not suggested that, at the time of the survey, the Disability Unit had a secret draft of the strategy locked in a drawer. The purpose of the survey was to find out information and views which might 'inform' the strategy.

“That suggests to me that the potential strategy was no more than an inchoate plan which would take shape as and when information was gathered, and in response to that information. The references to respondents' views shaping or informing the strategy, far from showing, as the judge seems to have thought, that the survey was a 'consultation', tend to show, instead, that there was not, at that stage, a concrete proposal to which the Gunning criteria could apply.”

She said the claimants' complained they were not told enough about the strategy to enable them to respond to it ‘meaningfully’, but “they could not be given that information because it did not exist.

“A linked complaint is that the survey did not ask for their views about any proposals. But that was because there were none at that stage. Rather, their views were being sought as information which might be relevant to the contents of the strategy, once it was formulated.”

Elisabeth Laing LJ concluded: “I do not accept the submission that it was open to the judge to find, on these facts, that the survey was a 'consultation' to which the Gunning criteria could, or did, apply..” She rejected though a second ground on the application of Gunning to voluntary consultations.

Agreeing with the main judgement, Bean LJ said: “it is far from obvious to me that a voluntary consultation should be subject to the same rules as one which the public authority is legally obliged to conduct.

“But that interesting question, on which there is no binding authority, will have to wait for another case in which it is raised at first instance, argued on both sides, and is essential to the decision.”

Lady Justice Macur also agreed with the main judgement.

Mark Smulian