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High Court is told government must rewrite its National Disability Strategy

5 November 2021

The government could be forced to rewrite its National Disability Strategy, if four disabled campaigners are successful in their bid to persuade the high court that the document is unlawful.

Yesterday (Wednesday), their legal team attempted to persuade the court, through a judicial review, that work and pensions secretary Therese Coffey failed to carry out a lawful consultation before publishing the cross-government strategy in July.

The high court heard that the four claimants – Miriam Binder, Jean Eveleigh, Doug Paulley and a fourth campaigner – had expressed “anger, frustration and disappointment” over Coffey’s claim that she did not have a legal duty to consult with disabled people on the strategy before publishing it, and that she had chosen not to do so.

They believe that the UK Disability Survey, which the government carried out in January and February this year, was intended to be a consultation on the national strategy but that it was an unlawful one.

They have also highlighted the failure to consult disabled people’s organisations (DPOs) on the strategy, which they say was “conspicuously unfair”, and they argue that the way the survey was carried out breached the government’s public sector equality duty under the Equality Act.

They believe that the process of engagement with disabled people and their organisations in developing the strategy was “grossly inadequate”, the court was told.

Now they want the court to order the government to devise a new, lawful consultation process in conjunction with disabled people and disabled people’s organisations (DPO) and then produce a revised national strategy.

When the strategy was published in July, outraged DPOs described it as “tokenistic” and “rehashed” and said it was “not fit for purpose”, not developed in co-production with DPOs, and failed to tackle the growing poverty, exclusion and discrimination disabled people face.

In his written evidence to the court, Paulley said the survey was “flawed in both form and content”, while the multiple-choice format of most of the survey “was deeply frustrating” and “did not provide any opportunity to describe the specific barriers I faced in my life, or to provide suggestions as to how these barriers could be reduced or eliminated”.

His legal team showed how the government had referred to the survey as a consultation on “multiple occasions”, including describing it as an “open consultation” and referring to it in a blog as “part of our ongoing consultation”.

Sarah Hannett QC, representing Coffey, admitted that there was “perhaps some unfortunate language referring to consultation”.

But she argued that the survey was only an “information gathering exercise”, designed to gather data about the lives of disabled people, and not a consultation on the proposed national strategy.

She suggested that the strategy was “best described as a framework” and was “never intended” to include every disability-related policy or legislative proposal that the government will take forward.

Hannett described the National Disability Strategy as “a bucket” in which the government had dropped “a mixture” of “some firm policy commitments”, some proposals that would be tested, and other potential policies that would be put out to consultation.

She suggested that it had not been appropriate to carry out an overall consultation on such a wide-ranging strategy containing so many proposals, and that consultations would be carried out on some of the individual proposals “in due course”.

But Steve Broach, the barrister for the four disabled claimants, who are also represented by Bindmans solicitors, said the survey had taken place “in the context of a concrete commitment to publish a strategy and with the express purpose” of obtaining views about what should be in it.

He said it was an “unsustainable” argument for the government to suggest that the survey “was anything other than a consultation” and he said it was “inconceivable” that the government would publish a national strategy about any minority group without carrying out a proper consultation on it.

He added: “It is crystal clear that this was a consultation, not merely a gathering of information.”

He added later: “It is not a mere information-gathering exercise. Its purpose was to check whether what was proposed by the strategy was right.

“All of the survey is about what should be in the strategy.”

Broach told the court that the four claimants were “particularly aggrieved” that most of the survey had been in a multiple-choice format, so restricting how they could respond.

He also pointed out that there had been no way for people with learning difficulties and others who wanted to respond to the easy read version of the survey to send their response to the government.

Broach told the court that “nothing about us without us” was a “vital principle for the disabled people’s movement”, and the government had failed to follow that principle.

He also said that many disabled people were in a “disadvantaged” position and so were not able to make their views known directly, and so the government’s failure to consult formally with DPOs – which could have responded on their behalf – was “conspicuously unfair”.

Hannett said that the government did gather views from some DPOs through a wider engagement exercise, which included round-table events.

The judge, Mr Justice Griffiths, said he would deliver his judgment at a future date.

4 November 2021