Disabled activists set to fight on in strategy court battle, despite appeal defeat

Activists are set to fight on in the battle to force the government to listen to disabled people in drawing up a proper national disability strategy, despite the government winning its appeal in a long-running court case.

The Court of Appeal ruled this week that the government’s National Disability Strategy was not unlawful, over-turning last year’s ruling by the high court.

The high court had found that ministers carried out an unlawful consultation – through a national survey – before the strategy’s publication.

The appeal centred 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 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.

Despite that claim, the Disability Unit’s own website had listed the survey as an “Open Consultation”, while it was hosted on the unit’s “Consultation Hub”, with the promise that responses would inform the strategy’s development.

But the Court of Appeal has now ruled that the survey was not unlawful because it was not a consultation that was subject to certain legal principles – known as the Gunning criteria.

Lady Justice Elisabeth Laing, one of the three Court of Appeal judges who heard the appeal, said in this week’s ruling that the strategy “had not reached a stage at which it could conceivably have been the subject of a ‘consultation’ complying with the Gunning criteria”.

She said the purpose of the survey “was not to enable respondents to respond to proposals (there were none) but to give the respondents to the Survey the opportunity to influence the future content of the Strategy with information and their views”.

Disabled campaigners who took the case now hope to secure permission to appeal to the Supreme Court.

Because of the high court ruling, ministers had been forced to sideline much of their discredited strategy – criticised at the time of its publication in July 2021 by disabled people’s organisations as “tokenistic”, “rehashed” and “not fit for purpose”.

They are now set to publish a new “disability action plan” in the next few weeks, which will sit alongside the strategy.

Doug Paulley, one of the claimants, told Disability News Service that he believed the appeal court’s ruling was wrong and “ridiculous”, when the government had itself described it as an “open consultation”.

But he also said it was “sad” that the serious problems with the National Disability Strategy and the survey had now been relegated to arguments about a “technicality”.

He said the National Disability Strategy and the consultation had been “a travesty”.

He said: “It comes down to a technicality, whether something is a consultation or just an information-gathering exercise.

“It is 18 months of fighting in court, all the money and energy on both sides, with the government fighting it when it was transparent that the whole thing was unfair… and then they win on a technicality.”

Asked for his message to the government, Paulley said: “They should deal with the core issue, which is that they should genuinely consult and involve and co-produce with disabled people and produce a National Disability Strategy that is fit for purpose and will make a positive difference to disabled people’s lives.”

Kamran Mallick, chief executive of Disability Rights UK, said: “Whilst the court ruling is surprising, as the disability survey was not an appropriate consultation, the government should now act to take significant and meaningful action to address the poverty and systemic inequalities faced by millions of disabled people.

“We definitely don’t need both a National Disability Strategy and a Disability Action Plan.

“We need a single ambitious and transformational plan to make society inclusive and put in place the incomes and support disabled people need to be equal citizens.”

Tom Pursglove, the minister for disabled people, welcomed the ruling in a written statement and said it meant both the UK Disability Survey and the National Disability Strategy had now been found to be lawful.

He said ministers now “need to take stock of what this decision means for individual National Disability Strategy commitments and evaluate how best to move forward”.

He said he would update parliament in September to “set out our next steps in more detail”.

He added: “The Government will also continue to move forward with our planned consultation on the Disability Action Plan over the summer.

“The Disability Action Plan and the National Disability Strategy were always intended to be complementary, with the former focusing on concrete, short-term actions deliverable in 2023/24 to improve disabled people’s lives, and the latter setting out our longer-term vision, and I am delighted that we are now able to make progress on both of them.”

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