Disability strategy court case ‘will force government to act on consultations’

A long-running legal case that reached the Court of Appeal this week will force the government to take its duty to consult with disabled people more seriously, according to one of the three disabled campaigners who have brought the case.

The Department for Work and Pensions (DWP) is appealing against last year’s high court ruling that the government’s National Disability Strategy was unlawful because ministers carried out an unlawful consultation before its publication.

Ministers have since sidelined their discredited strategy – criticised at the time by disabled people’s organisations as “tokenistic”, “rehashed” and “not fit for purpose” – and are set to publish a new “disability action plan” this summer.

Their appeal centres on whether the UK Disability Survey, which the government carried out early in 2021, was intended to be a consultation on a national strategy and whether it was an unlawful one.

The government argued this week that the survey was just an information-gathering exercise, not a consultation, and therefore it did not need to provide the information needed for disabled people to respond to it in a meaningful way.

The high court ruled early last year that the survey was a consultation and that the way it was set up made it impossible for disabled people to provide a proper response.

The government argued yesterday (Wednesday) that the survey was just an information-gathering exercise and so the rules applying to consultations did not apply.

Sir James Eadie, representing work and pensions secretary Mel Stride, told the Court of Appeal yesterday that it was “not a consultation in any proper sense” and was “just engagement and information-gathering”.

He said the work and pensions secretary at the time – Therese Coffey – did not provide any information in the survey about what she proposed to include in the disability strategy, and had not even decided at that point what should be in it.

He said: “How can the proposal be, as the respondents characterise it, a form of the strategy and its content, when no-one was told what that was?”

Sir James said: “That sort of general information-gathering as opposed to specific consultation on proposals is absolutely bog standard across government… it isn’t consultation in any proper sense.

“It’s just engagement and information-gathering.”

But Jenni Richards, representing the three disabled people who are taking the case, told the court that the high court judge’s view last year had been that “the way in which the strategy claimed to be responsive to the survey further demonstrated that it was intended in substance to be a consultation, to be a conversation, a dialogue, rather than just a broad information-gathering exercise”.

She added: “The strategy was a policy intended to make important practical and policy changes, that’s what the government itself says in various documents, in which the views of disabled people were said to be necessary, to be central, and need to be elicited.

“That is a consultation.”

Doug Paulley, one of the three disabled campaigners who are fighting the appeal, said he believed the government was likely to win the court battle.

But he said the case had become more about the technicalities of the law on public consultations, rather than the vital challenge to the National Disability Strategy it had originally been.

He told Disability News Service that, even if the government wins the appeal, ministers will be forced to take their duties to consult with disabled people more seriously in the future.

He said: “I do believe it does make organisations think twice in the future… even if we do lose, I do think it will make the government treat us with not quite such obvious, blatant contempt next time.”

He said that both the National Disability Strategy and the UK Disability Survey had not been “worth the paper they were written on” and “completely sidelined disabled people”, and that he was glad to have taken the case.

He said: “The consultation just was ridiculous. It was the most inadequate and degrading and ridiculous thing, and the resultant strategy was just not fit for purpose and of course it was important to fight it.

“They didn’t involve disabled people, they didn’t make any commitments, and that’s why everybody hated it and why we took the case.”

The three Court of Appeal judges – Lady Justice Macur, Lord Justice Bean and Lady Justice Elisabeth Laing – reserved their decision on the appeal until a future date.

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