THE CONSULTATION INSTITUTE

ESTABLISHED 2003 - 5,000+ PROFESSIONALS TRAINED

Article 22 March 2016 · 5 min read · Rhion Jones

How the DWP got it wrong - One of the causes of Iain Duncan Smith’s resignation was a flawed public consultation by the Department of Work and Pensions

From the archive

Originally published 22 March 2016. This article is retained from the tCI archive. Law, policy or practice may have changed since publication.

Whilst political journalists and commentators of every hue enjoy pouring over the entrails of the weekend’s dramatic political developments, this Tuesday Topic looks at just one specialist aspect of the story. Leaving aside the merits of the case for changing Personal Independence Payments to disabled people, was the consultation leading to the Government’s recent announcement properly conducted?

Was this, as the ex Secretary of State argued in his resignation letter and then on the Andrew Marr programme, a problem caused by the Treasury’s insistence on welfare cuts? Or did the blame for this debacle lie in his own Department for running a flawed consultation? Are there lessons in this tale that can help other Government departments, or indeed the rest of us?

First, let us acknowledge that the DWP is not a novice in public consultations; in 2015 it launched 18, according to its website. These will all have been bound by the 2012 Consultation Principles, which was only replaced by the new revised set in January 2016, as this particular exercise was about to close. Neither can it be surprised at the demanding standards the High Court expects of public consultations; it has experience of many Judicial Reviews including previous ones on the Independent Living Fund.

So what might the mistakes have been on this particular occasion?

  • No pre-consultation: The DWP proposals were basically part of continuing policy development ever since the Disability Living Allowance was replaced by PIP. In December 2014, an Independent Review by Paul Gray highlighted many problems and challenges affecting this new benefit, and many stakeholder organisations appear to have been in dialogue on the subject. However, there seems to have been no such discussion with key stakeholders before the new Consultation was launched on 10 December 2015. This is in breach of successive Government Codes of Practice and the 2012 Principles.
  • Insufficient Time: The Government planned a six-week consultation and agreed an extension of eight days, presumably to allow for the Christmas period. Many people argued this was too short, but it also seems to be in breach of the National Compact with the Voluntary and Community Sector, which has a default of 12 weeks. Although reference to the Compact has been removed from the 2016 Principles, it is the 2012 Principles that applied to this consultation – and they specifically advise Government departments to bear the Compact in mind.
  • No Impact Assessment: Had this consultation been subject to legal challenge, claimants would have argued that it failed the Gunning Two Principle. This requires a consultation to explain its proposals in a way that consultees can give it “intelligent consideration”, and has been judicially interpreted in countless cases. In this consultation, the five options (which is good) are difficult to understand, but no attempt was made to quantify the impacts.

No financial savings were published, nor even a guess as to how many people would be affected. Only in the Government response document in March 2016 was the figure of 640,000 claimants announced.

  • Breach of S.147 of the Equality Act 2010. This is the well known provision that requires decision-makers to have ‘due regard’ to the equality implications of their decisions, and virtually every consultation professional knows of the need to prepare properly for this. It is difficult to imagine a subject where this might have been more integral to the dialogue, yet no-one outside Whitehall has seen the DWP’s Impact Assessment.
  • Disputed evidence base. The consultation paper relies significantly upon a review of 105 selected PIP claimant cases by DWP doctors – a rather suspect and very low (0.02%) sample. Requests to see the data were rejected by the Department – again a step that might have led to losing a Judicial Review.
  • Inadequate Stakeholder meetings. Sometimes flaws in the documentary side of consultations can be ameliorated by excellent stakeholder events. There were very few, they were poorly attended and no-one can see the minutes.

Finally, there is the question of pre-determination. In his Andrew Marr interview, Iain Duncan Smith referred to the consultation but said that, after Christmas, he was subject to pressure from the Treasury on the issue. Although the consultation claims that no decision had been taken to make changes to the PIP, the Treasury appears to have been working on a contrary assumption. If this came to Court, would the Judge find in favour of the DWP, or rule that the Government, via the Treasury, had clearly made up its mind and declare the consultation therefore to be unlawful?

Clearly there is a lot of finger-pointing as the Treasury and the DWP slug it out to apportion blame for a political embarrassment. We take no sides in this argument, but regardless of whether the Treasury has been at fault, our analysis certainly indicates that the DWP’s consultation fell far short of the best practice standards we promote. Is it not ironic that in the UK we sometimes lavish greater care and organise so much better public consultations on the relocation of a park bench on the village green than on something affecting hundreds of thousands of people and costing billions of pounds! Funny, really - if it were not so serious.

Trigger points

This is the 293rd Tuesday Topic; a full list of subjects covered is available for Institute members and is a valuable resource covering so many aspects of consultation and engagement

Written by
Rhion Jones
Scroll to Top