UK High Court declares the National Disability Strategy unlawful

On 25 January the UK Government’s National Disability Strategy was found unlawful in the High Court following a failure lawfully to consult disabled people and others.

Brought to the High Court by four claimants – Douglas Paulley, Jean Eveleigh, Miriam Binder and Victoria Hon – the case, named R(Binder & Others) v Secretary of State for Work and Pensions, argued that the Secretary of State had chosen to consult with disabled people through the UK Disability Survey, but had failed to provide sufficient information on the proposed Strategy to gather a meaningful response. All claimants in the case were represented by Bindmans law firm who offer specialist legal services to individuals and businesses.

Legal duties

The survey was launched in January 2021 with the National Disability Strategy published during July 2021. While the government argued that the survey was an information-gathering exercise and so did not need to provide this information, the court found that the Secretary of State has embarked on a consultation to which legal duties applied.

Evidence in the case included press releases and documents published by the government which referred to the survey as a consultation to gather views on the development and delivery of the strategy. These documents repeatedly mentioned placing disabled people’s lived experiences at the centre of the strategy.

The survey itself didn’t include any specific proposals for inclusion in the strategy that disabled people could comment on with multiple-choice format and limited free-form responses that didn’t allow for proper responses. This meant the claimants in the case were unable to give the ‘intelligent consideration and response’ required of a fair and lawful consultation.

Due to the National Disability Strategy being informed by an unlawful consultation, the High Court declared the strategy itself to be unlawful, too.

Revision

Claimants Jean Eveleigh and Victoria Han have commented on the verdict via the representing law firm. Speaking to Bindmans, Jean said: “If the Secretary of State genuinely wishes to place disabled people’s lived experiences at the heart of the Strategy, then she must do so through proper and lawful consultation that provides a meaningful opportunity for disabled people and their organisations to contribute their views.

“As a strategy that is for disabled people, it should be informed by disabled people. Now that the Court has given this clear declaration, I hope the Secretary of State will carry out a proper and considered consultation to inform a revision of the Strategy.”

Victoria echoed Jean’s thoughts, saying: “For too long disabled individuals have been infantilised and our views ignored. This judgment sends a clear message that the government cannot claim to consult with disabled people if in practice we are not given the proper opportunity to share our views. It is time the government listened and learned from what disabled people have to say about our own experiences and lives.”

Shirin Marker, a solicitor at Bindmans acting for the claimants, says: “Through finding that the Secretary of State did consult in substance and failed to do so lawfully, the Court has made clear that the Secretary of State cannot purport to consult with disabled people while allowing them no opportunity to meaningfully contribute their views.

“We hope that the Secretary of State will now seek to rectify this unlawfulness, through proper and lawful consultation with disabled people and their organisations – something which the Claimants have sought since February 2021. Any appeal of this judgment will only delay the very necessary policy reform needed to support and improve the lives of disabled people.”

Response

Alongside the claimants and the law firm representing them, disabled people’s organisations (DPOs) are responding to the verdict:

Anastasia Berry, policy manager at the MS Society, says:
“We’re sadly not surprised the National Disability Strategy has been found unlawful. Despite being told ‘lived experiences’ would shape this key piece of work, people with MS told us they felt they had not been heard by the Government. Failing to adequately listen to disabled people, resulted in the strategy failing to address the biggest issues they are facing, like poverty. 

“The Secretary of State must take this opportunity to go back to the drawing board and truly consult with disabled people, including those with MS. The Government really should not need a court to tell them that to create a National Disability Strategy that reflects the needs of disabled people, you have to involve them.”

Chief executive at Disability Rights UK, Kamran Mallick says:
“We have a phrase in the disability community: ‘nothing about us without us’. I pay tribute to the Disabled people who fought for justice and gained this landmark ruling. 

“A Disability Strategy formulated without deep listening to the voices of Disabled people is doomed to failure. The Government must now go back and do what it should have done the first time round: dedicate time and resources to enable Disabled people to speak freely and fully on our lived experience, demonstrate we have been fully heard, and share draft Strategy proposals with us for discussion and comment.”

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