In 2021 four claimants brought a judicial review challenge arguing that the National Disability Strategy published by the Department for Work and Pensions (DWP) was unlawful on the basis that DWP had failed to lawfully consult. In the High Court, Mr Justice Griffiths held that the UK Disability Survey, a public survey which preceded the National Strategy, was a ‘consultation’ at common law which therefore attracted various public law obligations, with which DWP had failed to comply (R(Binder & Others) v Secretary of State for Work and Pensions [2022] EWHC 105).

The Court of Appeal has now handed down judgment in R (Eveleigh) v. Secretary of State for Work and Pensions [2023] EWCA Civ 810, finding the Mr Justice Griffiths was wrong to determine that the survey was a consultation. To the contrary, it was an information gathering exercise and so public law principles relating to consultation were not engaged.

The facts here are important, as the aim of the public survey was to “gather views and experiences for the National Strategy of Disabled People” and it was also relevant that the survey was “part of [DWP’s] ongoing consultation”. Nevertheless, the Court of Appeal found that the government’s references to the survey as a consultation were “legally irrelevant” and “whether, when a public authority engages with the public, that engagement attracts legal obligations is a question of substance, not form.”  

Complex proposals, projects and service redesign regularly involve engagement, and often there is a focus on ‘co-design’ or ‘co-production’ notwithstanding there can be differing views on what this involves. Generally speaking however, local authorities value the contributions of stakeholders and service users in designing and developing robust and sustainable service. However, this case highlights the benefits of being clear when there is an intention to undertake formal public consultation that needs to comply with the Gunning principles and when the intention is to undertake engagement of a different nature.

The government was, however, unsuccessful in trying to argue that the Gunning principles do not apply to voluntary consultation. To recap, the Gunning principles determine what constitutes lawful consultation and require the following: (i) the consultation must be at a time when the proposals are still at a formative stage; (2) sufficient reasons must be given for any proposal to permit of intelligent response; (3) adequate time must be given for consideration and response; and (4) the product of the consultation must be conscientiously taken into account in finalising any statutory proposals.

It follows, therefore, that when public bodies choose to consult, rather than undertaking consultation because of a legal duty (i.e. because of a statutory duty, because of a legitimate expectation or because failing to consult would be ‘conspicuously unfair’), they must ensure such voluntary consultation satisfies the Gunning principles. This is well established in common law and remains the case.

We should note, however, our understanding that the claimants are seeking permission to appeal the Court of Appeal’s judgment to the Supreme Court, so this may not be the final word.    

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