The High Court has found the government's recently published National Disability Strategy unlawful due to the design of the survey that failed lawfully to consult disabled people and others. 

The claim for judicial review was brought by four disabled people - Miriam Binder, Jean Eveleigh, Doug Paulley and Vicki Hon - who challenged the National Disability Strategy on the basis that a survey carried out prior to the publication of the Strategy did not provide sufficient information on the proposed Strategy to allow for meaningful response.

Steve Broach and Katherine Barnes from 39 Essex Chambers acted for the successful Claimants, instructed by Jamie Potter and Shirin Marker at Bindmans.

The Claimants argued that the Secretary of State had chosen to consult with disabled people through the UK Disability Survey (launched in January 2021), but that she had failed to provide sufficient information on the proposed Strategy to allow for meaningful response.

The government argued that the Survey was an information-gathering exercise, not a consultation, and therefore they did not need to provide such information. The Strategy was subsequently published in July 2021, while legal proceedings were ongoing.

Hope that the Secretary of State will now seek to rectify this unlawfulness

Shirin Marker, solicitor at Bindmans LLP acting for the Claimants, said: "Through finding that the Secretary of State did consult in substance and failed to do so lawfully, the Court has made clear that the Secretary of State cannot purport to consult with disabled people while allowing them no opportunity to meaningfully contribute their views.

"We hope that the Secretary of State will now seek to rectify this unlawfulness, through proper and lawful consultation with disabled people and their organisations - something which the Claimants have sought since February 2021. Any appeal of this judgment will only delay the very necessary policy reform needed to support and improve the lives of disabled people."

The judge referred to press releases and documents published by government, which included labelling the Survey a ‘consultation’ and writing that the Survey was to ‘gather views’ on the development and delivery of the Strategy. Reference was also made to putting Disabled people’s ‘lived experiences’ at the centre of the Strategy, and the Strategy said that the Secretary of State had ‘carried out the biggest listening exercise with Disabled people in recent history’.

Mr Justice Griffiths  said: “The Survey was presented (as I have shown) as being a way in which the Strategy could be shaped, would be shaped and (eventually) was shaped, but the information provided made that impossible. It therefore failed to achieve its stated purpose.

"The Survey was presented as a consultation, and the Strategy was said to have been a response to that consultation, but neither the Survey nor any other form of consultation enabled the “intelligent consideration and response” required by the second Gunning principle of lawful and fair consultation."

The strategy should be informed by disabled people.

The National Strategy for Disabled People was first announced in April 2020 and has been described by the government as a strategy to ‘remove barriers and increase participation’ and ‘transform’ the lives of disabled people.

Almost all the questions in the survey were multiple-choice. Only four questions allowed free text responses, three of them being limited to 100 words and the other to 250 words. At no point did any of the questions outline any proposed content for the strategy or seek views on such content.

Questions instead focused on data gathering, such as ‘Does your health condition stop you from doing everyday things?’ to which the possible responses were ‘Yes’; ‘No’; ‘Don’t know’; ‘Prefer not to say’. Access to the survey was solely online, with easy read copies required to be printed and posted by participants.

Jean Eveleigh, one of the Claimants in this challenge, said: "I am very pleased the Court has found that the consultation was unlawful and that therefore the National Disability Strategy is unlawful. If the Secretary of State genuinely wishes to place disabled people’s lived experiences at the heart of the Strategy, then she must do so through proper and lawful consultation that provides a meaningful opportunity for disabled people and their organisations to contribute their views.

"As a strategy that is for disabled people, it should be informed by disabled people. Now that the Court has given this clear declaration, I hope the Secretary of State will carry out a proper and considered consultation to inform a revision of the Strategy."