Ellen Clifford, R (on the application of) v The Secretary of State For Work and Pensions

A public consultation is unlawful only where the process is so unfair as to constitute a legal breach of procedural fairness. The assessment is fact-sensitive and considers the consultation as a whole.

The proposer must explain clearly what is proposed and why it is under positive consideration. The explanation must be sufficiently complete and candid to permit an intelligent response, particularly where vulnerable people may lose existing benefits or become subject to compulsory requirements. The consultation must also allow adequate time for consideration and response. The court determines these outer requirements, although the decision-maker retains judgment within them.

The claimant, a disabled person and disability rights campaigner, challenged the defendant’s consultation on proposed amendments to the Work Capability Assessment. She alleged that the consultation failed to explain the proposals, their rationale and likely impacts, and allowed insufficient time for responses.

The proposals could reduce access to the LCWRA category, remove or alter descriptors, reduce benefit entitlement and expose additional claimants to conditionality and sanctions. The consultation ran for eight weeks in circumstances where many affected consultees were vulnerable and had not anticipated the proposals.

1. Unlawful consultation. Grounds 1A, 1B in part and 2 were established. Each ground would, in the circumstances, independently have sufficed. The court granted a declaration that the consultation was unlawful.
2. What had to be explained. Applying the Gunning requirements and the authorities on fair consultation, the defendant had to explain that the proposals could compel additional people to undertake work-related activity or seek work, reduce benefit expenditure and remove substantial LCWRA payments. It also had to explain that financial savings, alongside reducing economic inactivity, were a driver of the proposals.
3. The consultation documents misleadingly suggested that people assessed as LCWRA were automatically excluded from available support. In reality, such support could already be offered voluntarily. The documents also failed to explain clearly that affected claimants could lose approximately £390.06 per month and become subject to conditionality and sanctions.
4. The court rejected the contention that these consequences were sufficiently inferable from the consultation paper or its annexes. Fairness required them to be stated expressly, particularly for consultees with cognitive impairments, mental health conditions or other vulnerabilities who might rely on the Easy Read document.
5. Rationale. The contemporaneous documents showed that AME savings were at least an equal driver of the proposals with the objective of reducing economic inactivity. The defendant therefore failed to disclose a factor likely to be substantially important to the eventual decision.
6. Impact information. The defendant was not required, before consulting, to model every possible combination of options or establish a complete evidence base of labour-market, fiscal and equality impacts. The failure lay in not explaining the nature and rationale of the proposals adequately.
7. Time. Less than eight weeks was insufficient. The consultation concerned significant and unexpected proposals affecting vulnerable people, overlapped with another consultation, and was accompanied by misleading and incomplete information. Consultees consequently needed more time to understand the proposals, obtain advice and respond.
8. The parties were directed to agree the wording of a draft order reflecting the declaration.

First-instance judicial review in the Administrative Court. No appellate history was stated in the judgment.