Digital by Default Doesn’t Mean Digital Only

Many public bodies have moved consultation online to cut cost and widen reach. But digital by default was never meant to mean digital only, and a consultation that quietly excludes offline residents can breach the Equality Act 2010 and fail the Gunning principles, the legal test for fair public consultation in the UK.

What does digital by default actually require in law?

Digital by default, the government’s approach of designing services so straightforward that most people choose to use them online, has never meant digital only. The original Government Digital Strategy stated that services should be so straightforward that those who can use them will choose to, whilst those who cannot are not excluded.

The accompanying Assisted Digital policy, the parallel commitment to telephone, face to face and other support for people who cannot use a digital service alone, went further. It stated that the needs of people who are offline should be considered throughout a digital by default approach. Exclusion was recognised as a foreseeable risk from the outset, not an unintended consequence discovered later.

That distinction matters for practitioners under pressure to cut cost. A digital channel can legitimately be the default route into a consultation. It cannot lawfully be the only route, because government’s founding policy never intended that, and because the residents most likely to be missed are not a random cross-section of the population.

Why does a digital-only approach create legal exposure?

Digital exclusion in the UK is not evenly spread. Ofcom’s Online Nation research shows that non-use and low digital confidence remain concentrated among older residents, disabled people and those on low incomes, groups that overlap heavily with characteristics protected under the Equality Act 2010.

This overlap turns a practical access problem into a discrimination risk. Sections 20 and 21 of the Equality Act create a duty to make reasonable adjustments, so telephone, paper or face to face routes may be a legal requirement rather than good practice. Section 19 covers indirect discrimination, where a neutral looking requirement, such as responding online, disproportionately disadvantages a protected group.

The Public Sector Equality Duty (PSED) under section 149 adds a procedural obligation that bites before a decision is made, not after. A public authority must show due regard to eliminating discrimination and advancing equality. A consultation run primarily online, without evidence that offline residents were properly considered, risks failing that duty at the point it matters most.

Separately, the Gunning principles, the established legal test for fair public consultation in the UK, require consultation while proposals remain open to influence, with enough time and information for a considered response, confirmed by the Supreme Court in R (Moseley) v Haringey LBC [2014] UKSC 56. A process that under-represents excluded groups produces a skewed evidence base, undermining the conscientious consideration those principles demand.

The Local Government and Social Care Ombudsman has separately criticised councils for inaccessible communication and poor accommodation of disability. Its decisions confirm that the method of communication, not just its content, can amount to maladministration. A digital-only consultation sits within that pattern of complaint.

What should a practitioner running a live consultation do?

Treat digital exclusion as an administrative law question, not an IT problem. Start by identifying who is likely to be excluded and record how that has shaped the consultation design, in line with the PSED and the evidential standard set out for equality analysis and the Public Sector Equality Duty.

Offline routes remain the recognised mitigation. Government’s own model still relies on assisted digital support, telephone lines, paper responses and face to face help rather than removing analogue access altogether. Authorities that withdraw these routes without good reason also risk challenge on legitimate expectation grounds, the principle that a public body must not abandon a settled way of dealing with people without fair notice.

A fully accessible website is necessary but not sufficient. The Public Sector Bodies Accessibility Regulations 2018 set technical standards for public sector websites and apps, but meeting them does not address residents who lack internet access, digital skills or the means to get online.

There is also a data quality dimension worth naming plainly. Research on public participation finds that digital channels can increase responses from some groups while suppressing them from others, including older residents, disabled people and those with limited English. A consultation built on that skewed sample may not represent the affected population, which weakens the decision it is used to justify.

For a consultation lead facing a live decision, the test is simple. If the response data cannot fairly represent the people affected, the decision built on it is vulnerable. The safer position is to design offline routes in from the start and document that choice, rather than defend their absence after a challenge has landed.

How tCI Can Help

Advice and Guidance
A tCI faculty member will work alongside you to support the development of your decisions and engagement approach. We provide independent, constructive advice at critical stages, helping you strengthen stakeholder mapping, test communication strategies, and plan robust post-decision engagement. Our role is to act as a critical friend, offering practical recommendations grounded in consultation law and good practice that build confidence in your process.

Risk Assessment
Early identification of legal, political or reputational risks in your engagement approach. Using tCI’s five-risk methodology, we spot gaps before challenge arises, helping you strengthen stakeholder communication and demonstrate procedural fairness from the outset.

Executive Briefings
Concise updates for senior leaders on consultation law, engagement duties and post-decision risks. Helps boards and leadership teams make confident, defensible decisions when under pressure, with clear guidance on what good engagement looks like after difficult choices are made.

Whether you’re preparing for a high stakes service change or building defensible evidence for complex decisions, we can help.

Contact tCI: hello@consultationinstitute.org