When is a consultation not a consultation?

Lessons from the judicial review proceedings of R (Binder and others) v Secretary of State for Work and Pensions [2022] EWHC 105 (Admin)

Background

The Department for Work and Pensions (DWP) carried out a ‘public survey’ to inform a “National Strategy for Disabled People” as part of its “ongoing consultation” with people with disabilities.

Four disabled people lodged a judicial review, claiming that the DWP had consulted unfairly. The DWP argued its public survey was never a consultation, yet it sought the views and experiences of disabled people to inform its national strategy. DWP said it wanted to put disabled people’s voices at the heart of the strategy. The judge concluded it was an unfair consultation

Key lessons

1. A consultation is always a consultation, even if you call it something else (e.g., a public survey)
2. If it is usual practice to consult or a public promise has been made to consult, then this creates a legitimate expectation to be consulted. Failure to consult in these circumstances is s considered ‘conspicuously unfair’
3. The importance of the ‘Gunning Principles’
4. Be careful to use the right language
5. Open comments boxes need to allow for intelligent response

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