3.45R (Sumpter) v Secretary of State for Work and Pensions [2015] EWCA Civ 1033
A consultation process is fair if, ultimately, consultees can be expected to have understood the issues and the relevant factors
Facts: Mr S sought a judicial review of the Secretary of State for Work and Pensions’s decision to replace disability living allowance with the personal independence payment (PIP), on the basis that the consultation process had been unfair and unlawful, in that (1) the Secretary of State for Work and Pensions had not made it clear that he intended to reduce the threshold condition for enhanced mobility PIP to an inability to walk more than 20 metres and had prejudged that issue, and (2) it had not been made clear that re-allocation of resources from physically impaired claimants, to non-physically impaired claimants, meant that the PIP criteria were significantly more restrictive than the higher rate disability living allowance (DLA) mobility criteria, which would cause substantial numbers of claimants to lose their entitlement.
Judgment: the Court of Appeal (Patten, McCombe and Gloster LJJ) held that overall the consultation process had been fair and, in that the Secretary of State for Work and Pensions had ultimately made his proposals clear and he had not prejudged any issues, and in that it should have been obvious from the Secretary of State for Work and Pensions’s impact tables that 280,000 fewer people were predicted to receive enhanced rate mobility under the PIP, compared with those on DLA higher rate mobility. McCombe LJ said this on behalf of the Court of Appeal:
49. The applicable law was not seriously in issue, either before the judge or before us. Before Hickinbottom J the principles were uncontroversial and he set them out in the passage of the judgment to which I have referred. Equally, before us, while both parties said that the starting point on the law relating to challenges to public authority consultations is now to be found in the Supreme Court decision in R (Moseley) v Haringey LBC [2014] 1 WLR 3497 (decided after the judge gave his judgment) both acknowledged that in R (Robson) v Salford City Council [2015] EWCA Civ 6 at [22], Richards LJ said that the decision in Moseley was largely an endorsement by the Supreme Court of principles already established in this court and was an illustration of the application of those principles.
50. The overriding principle is that consultations must be ‘fair’, an easy concept to state, but sometimes rather less easy to apply in practice. The application of the duty is ‘intensely case-sensitive’ (per Arden LJ in R (United Company Rusal PLC) v The London Metal Exchange [2014] EWCA Civ 1271 at [28], a case in which (as we were told) the Supreme Court, since Moseley, has refused permission to appeal to that court.