tCI commentary:
Stand by for an epic High Court battle between angry disability campaigners and a Government that’s unsure whether the Survey it launched earlier this year was meant to be a consultation or not. There are few cases where Courts have intervened specifically on the dialogue method used in a consultation, but this may be different. It opens up for argument whether Ministers were asking for views whilst policies were still at a formative stage (Gunning One). Given that the Disability Strategy has been in preparation for five years or more, the case will provide a focus for the disability rights lobby to question whether the time has been properly spent discovering what they need and exploring ways to meet them. Some of issues straddle the whole of the UK via the DWP, whilst other disability policies are devolved. What is already complex and emotive may soon become even more of a minefield as the Courts are asked to rule on the consultation-that-wasn’t. The Institute will watch this one closely.
Article:
The government appears to have been forced to delay the publication of its controversial disability strategy, after four disabled people were granted permission to challenge the legality of its consultation process in the high court.
Publication of the strategy was originally planned for the spring, but as spring passed into summer government statements on its progress changed from saying it would be “published in the spring”, to promising that it would be published “soon”.
Disability organisations were then told last week to expect its publication within days.
But a sign of further delay came when the minister for disabled people, Justin Tomlinson, told an MP in a written answer that the strategy would be published “later this year”.
And with parliament beginning its long summer recess today (Thursday), the strategy has still not been published.
Tomlinson and the Department for Work and Pensions (DWP) appear to have focused instead on their new disability benefits green paper (see separate story).
The strategy was already long-overdue.
As far back as May 2018, Disability News Service (DNS) reported that DWP was refusing to say what had happened to its last disability strategy, Fulfilling Potential.
The initial stage of Fulfilling Potential was first launched in December 2011, but there have been no updates or progress reports on the government’s website since November 2015.
The new national disability strategy, and a survey that aimed to “gather views and experiences” to inform its development, have caused continuing controversy this year.
Some of the anger was over the decision to ask non-disabled people responding to the survey if they would be “happy to have a physical relationship with a disabled person”.
But the survey also led to a series of letters to ministers from disabled people’s organisations and allies, criticising it for being rushed, inaccessible, over-long and poorly-planned.
Four disabled people – including two leading campaigners – have now been granted permission to challenge the survey through a judicial review, with the high court deciding that it was “important in the public interest”.
They say that only limited information was provided about the strategy in the survey and that the way it was designed meant they could not respond in a “proper and effective” way.
They are also arguing that there was a failure to consult with disabled people’s organisations about the strategy.
They say that all but four of the questions in the survey – carried out by the government’s Disability Unit – were multiple choice.
Three of the other questions were limited to just 100 words, and the other one to 250 words.
It is believed that the high court’s decision to allow a judicial review is behind Tomlinson’s decision to postpone the publication of the cross-government strategy.
Doug Paulley, one of the four disabled people taking the legal case, told DNS the survey was “clearly flawed”.
He said: “Any strategy that is based, at least partly, on a totally flawed consultation would be likely to be incorrect and subject to challenge.
“I think [the survey] was utterly useless and pointless and pen-pushing at best, so the government would be pretty silly to publish their strategy.
“There has been very limited attempt to engage in any meaningful way with actual disabled people and their organisations.
“The consultation, I think, was contemptible.
“The whole thing wasn’t informed by disabled people’s concerns, wants or needs.”
The government is apparently arguing that the survey was not a consultation – even though the Disability Unit’s own website listed the survey at the time as an “Open Consultation” and it was hosted on the unit’s “Consultation Hub” – and that it was not obliged to consult disabled people about the strategy.
But Paulley said the entire process was just “thoroughly ridiculous”.
He said the government needed to relaunch the process with a proper consultation.
He said: “They need to speak to disabled people and disabled people’s organisations, and that needs to form some significant part of the intended strategy.
“You would have thought that that would have been the basics, but the government clearly didn’t.”
Miriam Binder, a member of the national steering group of Disabled People Against Cuts (DPAC) and another of the quartet taking the legal action, said DPAC’s main concern about the survey was that there was “no clear indication of what the strategy will be addressing”.
She said the survey had been “pretty much a tick box exercise” and provided “very little, if any, opportunity to describe what the various barriers actually were”.
She said the survey was also inaccessible to large groups of disabled people, including those who were not computer literate.
She said: “What we are hoping to achieve is firstly a recognition that we need a proper consultation prior to the disability strategy.
“We need to know what areas it will be seeking to address.
“And we need a clear commitment that it will allow us – that is, the DPOs such as DPAC as well as the various other DPOs – to get involved in informing the authors of the disability strategy.”
Shirin Marker, a solicitor at Bindmans, who is acting for the four claimants, said: “In granting permission, the court has understood the importance of this issue, which is of potentially huge significance to disabled people.
“We hope that the secretary of state will now recognise the sense in delaying publication of the strategy until after the court has ruled on whether an unlawful consultation has taken place, as any strategy predicated on unlawful consultation may itself be subject to challenge.”
A DWP spokesperson said the government would be publishing the strategy “shortly”.
Article originally appeared on Disability News Service (DNS)
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