CU, R (on the application of) v Secretary of State for Education

Voluntary public consultation attracts the Gunning requirements only where, in substance, the public authority proposes a sufficiently specific decision which is at a formative stage and capable of intelligent response. A consultation question seeking information to shape future proposals does not itself become a proposal to preserve the existing law or policy in the meantime.

Government is generally entitled to choose which proposals to explore and when, subject to public law obligations. The court may consider the wider consultation outcome when applying the statutory test of whether it is highly likely that the outcome would not have been substantially different for the applicant. Individual participation does not necessarily establish that the statutory threshold is met.

The claimant, a child with special educational needs and disabilities, challenged question 7 in the Government’s SEND Review consultation. The question asked whether the remedies available to the First-tier Tribunal in disability discrimination claims against schools were effective in putting children’s education back on track.

The claimant argued that the consultation was unlawful because it did not explain that the Tribunal could not award compensation, contrary to the second Gunning principle and the requirements of rationality. The defendant argued that the Gunning principles did not apply, and relied on delay and the statutory no-substantial-difference provisions.

The court granted permission, rejected the delay and no-substantial-difference objections at the permission stage, but dismissed both substantive grounds.

1. Substantive challenge dismissed. The Gunning requirements applied only if the consultation, viewed in substance and context, involved a proposal to make a sufficiently specific decision at a formative stage. Question 7 did not do so. It proposed only to explore how the existing remedies operated in practice. It was neither a specific proposal nor an inchoate plan capable of being explained sufficiently for intelligent response.
2. The possibility that consultation responses might influence a later investigation, and ultimately a future proposal, did not bring question 7 within the Gunning principles. Nor could the question properly be characterised as an implicit proposal to do nothing meanwhile. Treating it as such would intrude upon the constitutional principle that government chooses which changes to law and policy to investigate and propose, absent a legal obligation to the contrary.
3. The irrationality challenge failed for the same reason. The Secretary of State was entitled to decide which proposals to put forward and when. Judicial review could not be used to compel the Government to make a positive proposal to add a compensation remedy merely because that remedy might assist in restoring a child’s education.
4. As to time, a challenge based on the second Gunning requirement could be brought when the consultation was issued, after it ended, or against the final decision, depending on the facts. The claimant’s challenge was brought promptly and within three months of the consultation ending. In any event, an extension of time was justified because the claimant had reasonably asked the defendant to remedy the alleged defect during the consultation and had been refused.
5. The no-substantial-difference objection was rejected. At the permission stage it was at least arguable that the relevant outcome included a properly informed consultation in which respondents could describe their own experiences of the compensation exclusion. It was not highly likely that such information would have made no substantial difference to the consultation or to the claimant’s legitimate interest in a lawful process.