The courts are continually refining consultation law. As the challenges become more detailed, so do the rulings. It means we’re constantly learning!

This case, Clifford, R (On the Application Of) v Secretary of State for Work and Pensions [2025] EWHC 58 (Admin) reminds prospective consultors that transparency, understanding your target audience, and treating consultees fairly are critically important to a successful consultation.

Quick overview

In September 2023, the Department for Work and Pensions announced a public consultation on potential changes to the work capability assessment (WCA). The consultation lasted eight weeks. The DWP wanted to hear the “views of disabled people, employers, charities and others” and received 1,348 responses. 23 days later, the DWP published a response to the consultation outlining changes in the WCA that would make it more difficult for new claimants to be determined as having limited capability for work-related activity.

In January 2025, the High Court ruled the consultation was unlawful, finding that the consultation was “misleading”, “rushed” and “unfair”.

Misleading

Around 424,000 disabled people stood to be worse off by at least  £416.19 per month if the proposals were implemented. During the hearing, evidence was presented that showed civil servants had thought about how a cost-cutting narrative for this issue would impact on other ministerial objectives.

Nowhere in the consultation documents did it reference the fiscal savings or state that the proposals would significantly reduce the amount of benefits paid to some or all affected claimants. Instead, proposals were presented as a way to help disabled people find work, failing to disclose that cost savings was a “primary rationale”.

The law on this is clear. There cannot be a false rationale or sugar coating of proposals to make the change appear more amenable to the target audience. Considering changes for financial reasons is a concept much of the public understands. It might not be liked, but it is understood. To hide away from this is considered disingenuous and misleading.

This is the second case we’ve come across in the last few months where a claim has been raised against the public being misled. The other one was settled outside of court, so there was no judgment to consider.

Rushed and unfair

It was clear to the court that DWP had not done any of the employment, equality, disability, and other assessments that it would need to do to understand the potential impact of the proposals before it launched the consultation.

The rush to announce savings in the Autumn Statement (Nov 2023) led to a shortened consultation period, despite advice that this wouldn’t allow enough time for proper assessment and would violate the Gunning principles.

“…changes in the Autumn would not be compliant with the Gunning principle (sic) as there is insufficient time to properly undertake all the necessary steps”

To add further burden upon vulnerable people who were the DWP’s targeted audience, a significant consultation lasting 12 weeks on the Disability Action Plan was running simultaneously, which the Judge concluded ‘cannot be overstated’.

During the 8-week consultation, the Department received a number of complaints from key, target organisations such Z2K, regarding the time frame and lack of clarity about the proposals.

Z2K: “does not consider eight weeks a sufficient period to consult on changes that could have a substantial impact on disabled people and people with long-term health conditions. It has not been feasible to meaningfully engage our networks with lived experience on such a complex area in this timeframe. This challenge has been made greater by the lack of clarity in the consultation documents, in particular the accessible versions.”

Whilst the Courts recognise that consultation should be a “process that is capable of being self-correcting”, effective consultation involves actively addressing misunderstandings and errors throughout the process which many of our NHS colleagues do successfully.

At no point did the Department act upon any of the complaints made during the process.

Summary

Public consultation is a fluid process that should allow for opinions to be heard, decisions to be influenced, mistakes to be made and more importantly, rectified. The High Court’s ruling highlighted serious flaws in the handling of the consultation process and either a lack of understanding about key principles or a total disregard for their importance. How this case was even considered winnable by the Government is surprising. However, it is a good reminder that public consultations should be thorough, accessible and transparent and truly consider the views and needs of those likely to be affected, rather than simply a tool for advancing policy changes.

Blog by: Becky Wright