Sumpter, R (on the application of) v Secretary of State for Work and Pensions

Voluntary consultation, once undertaken, must be fair. Fairness is assessed holistically and fact-sensitively by reference to the whole process. Consultees must receive intelligibly clear information and a proper opportunity to respond while the proposal remains open to influence. A preferred option is permissible if the decision-maker retains an open mind and does not effectively exclude legitimate alternatives. The public sector equality duty requires conscious and conscientious attention to the statutory equality criteria, but the weight given to those matters remains for the decision-maker. The claim challenging the 20-metre Personal Independence Payment mobility threshold was dismissed.

The claimant, a disabled recipient of the higher-rate mobility component of Disability Living Allowance, challenged the adoption and retention of a 20-metre threshold for the enhanced mobility component of Personal Independence Payment.

He alleged unfair consultation, insufficient information about the impact on physically disabled people, and breach of the public sector equality duty under section 149 of the Equality Act 2010. The challenge concerned the 2012 and 2013 consultations, the 2013 Regulations and the October 2013 decision to retain the criteria.

1. Claim dismissed. The court was concerned with procedural lawfulness, not the merits of welfare policy or resource allocation.
2. Consultation, whether statutory or voluntary, must be fair once undertaken. Fairness is assessed holistically and fact-sensitively, by reference to the whole process. Relevant considerations include whether the proposal was formative, whether adequate information and time were provided, whether consultees could respond intelligently and effectively, and whether responses received conscientious consideration.
3. The Second Draft criteria were ambiguous and reasonably understood as retaining an effective 50-metre threshold. The introduction of the 20-metre threshold was a radical change. The court had grave doubts that the process would have been fair had it ended in December 2012 or February 2013.
4. That issue was not determinative. The 2013 consultation gave interested parties a proper opportunity to address the 20-metre criterion. The Secretary of State retained an open mind and had not closed off alternative changes or funding arrangements. The process as a whole was therefore fair and lawful.
5. The information supplied enabled an intelligent response. Precise impact figures were unnecessary where consultees could understand the broad effect of the proposals on physically and non-physically disabled people.
6. Section 149 of the Equality Act 2010 required conscious and conscientious attention to the statutory equality criteria and their implications. The Secretary of State had relevant impact information and had due regard to it. The court could not substitute its view of the appropriate weight.