Running and challenging consultations: a reminder of the key principles

Overview

The High Court's recent judgment in R (Clifford) v Secretary of State for Work and Pensions [2025] EWHC 58 (Admin) highlights a number of points which those running, and those contemplating challenging, consultations need to keep in mind:  

1. Proposals need to be explained clearly, and their adverse impacts cannot be shied away from.
2. The reasons for proposals need to be explained (including where a reason for the proposals is to save costs), to allow consultees to engage with, and influence, the proposals.
3. When determining the duration of a consultation, the impact of the duration needs to be considered – a short consultation may not be justifiable if that makes it harder for consultees meaningfully to engage.  
4. Whilst fairness in every consultation needs to be assessed on its own facts, the demands of fairness may be heightened where consultees are vulnerable.

Background to the case

The UK Department for Work and Pensions ran a consultation from 5 September 2024 to 30 October 2024 on proposals to amend the Work Capacity Assessment (WCA).  The WCA is used to assess the capability to work of people claiming Universal Credit, based on a health condition which might impact their ability to work, and Employment Support Allowance.  

The consultation was challenged on two main grounds:

1. The Department had failed to provide sufficient information for consultees properly to consider, and thereby respond to, the proposals. In particular, it was alleged that the Department had failed adequately to:

          a. explain the proposals themselves;

          b. explain the rationale for the proposals; and

          c. provide accompanying information.

2. The Department had failed to provide sufficient time for consultees to respond.

The High Court found that the consultation had been unlawful on each of the grounds of challenge, except for the alleged failure to provide adequate accompanying information.

Key lessons from the case

1. Proposals need to be clearly explained, including adverse impacts

The claimant argued that it was not made clear that the proposals were to replace voluntary work-related activity with compulsory work-related activity and reduce the income of a large number of claimants.

In allowing ground 1(a), the Court accepted the evidence of a number of NGOs that the way that the proposals were presented would have "seriously hindered" the proper understanding of the proposals by vulnerable people. The Court noted, in particular, the evidence from one NGO that the Department omitted from the consultation the fact that the consequence of the proposals would be that people would lose £390.00 per month.

An 'Easy Read' document had been prepared as part of the consultation, but the Court considered it to be misleading in a number of respects, including by not making it clear that the proposal was to compel additional people to participate in work-related activity or that it would lead to a significant reduction in the amount of money paid to most affected claimants.

2. The reasons for proposals need to be made clear, including where a reason is to save costs

In allowing ground 1(b), the Court found that the Department " … ought in fairness to have made clear that … cost saving were, together with work inactivity, the rationale for the proposals". However, the Easy Read document made no references to costs savings.

The reason for the proposal is likely to be material to the decision maker. In order to effectively respond, consultees therefore need to understand why a proposal is being made, so that they can properly engage with, and seek to influence the outcome of, the consultation.

3. The practical impact of a short consultation needs to be considered

Although the Court allowed ground 2, it does not follow that an eight-week consultation will automatically be unlawful.

The Court noted that a consequence of the compressed consultation was that it "contributed to": (a) the hurried publication of misleading and unfair consultation documents; and (b) a failure adequately to explain the proposals themselves or the rationale for making the proposals. As a result, consultees required more time than provided to understand, and take advice on, the effect of the proposals on them.

4. The demands of fairness may be heightened when the likely audience for a consultation is vulnerable

The judgment is a helpful reminder of some key principles of the law around consultations. When assessing the lawfulness of a consultation, the fundamental question is whether the consultation is "so unfair as to be unlawful" (R (Bloomsbury Institute Ltd) v Office for Students [2020] EWCA Civ 1074). Whether a consultation is fair is a "… fact sensitive question that depends upon all the circumstances of the particular case looked at as a whole".

Throughout the judgment in the Clifford case, the Court was acutely conscious of the vulnerability of those impacted by the consultation. Indeed, the vulnerability of the consultees was referenced by the Court within its reasoning on each of the grounds that it allowed.  

It is clear that the requirements of fairness will be stricter where the consultee cohort may be considered vulnerable.   

If you would like to discuss any of the issues raised in this blog, please get in touch with our consultation team – which includes Martin Sleight, Sarah Ellson and Olivia Rogers – who advise on all aspects of consultation processes: from running them to responding and, where necessary, challenging them.

The content of this blog does not constitute legal advice and is provided for general information purposes only. Specific legal advice should be sought before taking any actions based on the content of this blog.