R (Sumpter) v The Secretary of State for Work and Pensions

The claimant, a recipient of Disability Living Allowance (DLA) higher rate mobility, challenged the Secretary of State’s adoption and retention of a 20 metre walking threshold in the Personal Independence Payment (PIP) assessment criteria, arguing (i) the consultation was unfair because consultees had no proper opportunity to comment on the 20m threshold, (ii) consultees were not given sufficient information about the impact of the proposals on physically disabled people, and (iii) the Secretary of State failed to comply with the public sector equality duty under section 149 of the Equality Act 2010. The court applied the established law on consultation and fairness, including the Gunning/Coughlan principles, and considered the material published by the Department for Work and Pensions and the further 2013 consultation specifically on the Moving around activity.

The judge found that although earlier drafts (the Second Draft) were ambiguous and many consultees reasonably construed them as retaining an effective 50 metre benchmark, the later consultation of 2013 (and the material and consideration given to responses) meant that, viewed as a whole, the consultation process was fair. The court accepted that the Secretary of State retained an open mind, that post-consultation representations and Parliamentary scrutiny were considered, and that practical funding and remedial options (including adjustment of other assessment criteria or funding routes) were available. The Equality Act duty had been consciously addressed by Ministers through published equality impact assessments and by consideration of the impact on physically disabled claimants. The claim therefore failed.

Background and parties: The claimant (Mr Sumpter) suffers from significant mobility limitations and received DLA higher rate mobility and a Motability vehicle. The Government introduced PIP to replace DLA, with new assessment criteria and point thresholds set out in the Social Security (Personal Independence Payment) Regulations 2013. The claimant sought judicial review of the Secretary of State's decision to adopt and retain a 20 metre threshold in the Moving around activity within the PIP mobility criteria, and of the related regulations, on the grounds of unfair consultation, inadequate information and breach of the public sector equality duty.

Nature of the application / relief sought: The claimant sought relief challenging the lawfulness of the consultation process and the decision to include the 20m threshold in the final assessment criteria; effectively relief to quash or declare unlawful the relevant decisions and regulations or associated decisions to retain the 20m threshold.

Procedural posture: This was a first-instance judicial review in the Administrative Court. The claim was issued March 2013, permission was granted and the substantive hearing took place before Mr Justice Hickinbottom in July 2014 (after an intervening stayed period while a further consultation took place).

Issues before the court: (i) whether consultation was fair in relation to the 20m threshold (Ground 1); (ii) whether consultees were provided with sufficient information about likely impacts, particularly on physically disabled claimants (Ground 2); and (iii) whether the Secretary of State complied with the public sector equality duty under section 149 of the Equality Act 2010 (Ground 3).

Court’s reasoning and findings:

• The court applied established consultation law (including the Gunning/Coughlan principles) and emphasised fairness as the touchstone.
• The Second Draft criteria were found to be ambiguous and many consultees reasonably construed them as preserving a 50 metre benchmark; that ambiguity was a flaw in the earlier material.
• However, the Secretary of State carried out a focused 2013 consultation specifically on the Moving around activity, and Ministers received comprehensive advice and equality analysis addressing the responses. Evidence showed Ministers kept an open mind and had considered funding and alternative means (including adjusting other assessment elements) if changes were to be made.
• The court concluded that, looked at as a whole (including the 2013 Consultation and subsequent consideration), the consultation process was not unfair nor rendered unlawful by earlier ambiguity. The 2013 exercise and ministerial consideration remedied earlier defects.
• As to sufficiency of information, by the 2013 Consultation the Department had published projected numbers and equality impact material sufficient for an informed response, and consultees were aware of the likely redistribution effects between physically and non-physically disabled claimants.
• On the Equality Act 2010 duty, the court held the Secretary of State had due regard to equality implications: the Department carried out equality impact assessments, considered detailed figures and case studies, and Ministers consciously weighed equality factors before deciding to retain the 20m criterion.

Subsidiary findings: the court noted the difficulty and lack of clarity in some draft descriptors and accepted that many consultees were surprised by the 20m threshold; nevertheless the overall decision-making process required by law was observed.

The claim is dismissed. The court held that the consultation process, viewed as a whole (including the 2013 focused consultation on the Moving around activity), was not unfair or unlawful despite ambiguity in earlier drafts; consultees were given sufficient information to respond; and the Secretary of State had due regard to the public sector equality duty in section 149 of the Equality Act 2010 when deciding to retain the 20 metre threshold.