Secretary of State for Work and Pensions v Eveleigh [2023] EWCA Civ 810
The Court of Appeal considered whether a survey carried out prior to the government's publication of the National Disability Strategy (Strategy) in July 2021 constituted a 'consultation' which would render the Strategy unlawful. In an application for judicial review, the High Court had held that the Strategy was unlawful on the basis that: (i) the UK Disability Survey (Survey) carried out before the publication of the Strategy was a 'consultation' at common law; and (ii) consequently, the Survey attracted the obligations established in R (ex parte Gunning) v Brent London Borough Council (1985) 84 LGR 168 (the Gunning criteria), with which the Secretary of State for Work and Pensions had failed to comply (Eveleigh v Secretary of State for Work and Pensions [2022] EWHC 105 (Admin)).
Allowing the Secretary of State's appeal, the Court of Appeal found that the Survey was not a 'consultation' for the purposes of the Gunning criteria. Laing LJ noted that whether a public authority’s engagement with the public attracts legal obligations is a question of substance not form. Therefore, it was irrelevant that the Survey was put on the government’s Consultation Hub and that the government had repeatedly used the word 'consultation' in connection with the Survey. Laing LJ also considered that the Gunning criteria would apply only to cases in which "a public authority is proposing to make a specific decision which is likely to have a direct (and usually adverse) impact on a person or on a defined group of people." Since the Strategy consisted of a series of general policy commitments which were at "such a high level of abstraction that it is not easy to see their direct negative (or positive) impact on a particular person or group of people", it was not the type of proposed decision to which the Gunning criteria was intended to apply. Furthermore, as the Strategy was no more than "an inchoate plan which would take shape as and when information was gathered, and in response to that information", it had not reached a stage at which it could conceivably have been the subject of the Gunning criteria.
For more information about disability discrimination generally, see Disability.
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