How (not) to consult: consultation and the Gunning principles in operation

The recent cases of R (on the application of Ellen Clifford) v Secretary of State for Work and Pensions [2025] EWHC 58 (Admin) and R (on the application of Sarcp) v Stoke-on-Trent City Council [2025] EWHC 18 (Admin) both include consideration by the Administrative Court of the law around consultation and the application of the Gunning principles. In this blogpost, we deal with each case in turn, before looking at some of the overarching lessons we can take from these cases.

key points

• The legal principles governing consultations are known as the Gunning principles, which provide as follows:
  • consultation must be at a time when proposals are still at a formative stage.
  • sufficient reasons must be given for proposals to permit intelligent consideration and response.
  • adequate time must be given for consideration and response.          
  • the product of the consultation must be conscientiously taken into account in finalising any proposals.
• Application of the Gunning principles is a fact specific exercise that requires the court to consider the particular circumstances of the consultation, including the audience and the nature, complexity and impact of the proposals.
• There should be candid disclosure of the true reasons for the proposals.
• Failure to acknowledge or deal with issues raised in the consultation may lead to the conclusion that the decision maker has not conscientiously taken into account the product of the consultation.
• The stage at which unlawfulness is found may impact the court's position on what relief should be granted.

R (on the application of Ellen Clifford) v Secretary of State for Work and Pensions

Background

The claimant, a disability rights campaigner, challenged a consultation by the Department for Work and Pensions ("DWP") on proposals to make legislative amendments to the Work Capability Assessment. 

Judgment

Ground 1A: failure to adequately explain the proposals

The court found that the manner in which the proposals were explained did not adequately take into account the audience, noting the particular vulnerabilities of the consultees. Such vulnerabilities meant that, in this case, "fairness dictated that the Defendant ought to have spelled out clearly to these consultees the effect upon them of what was being proposed." Instead, it was not clear that the proposals were to replace voluntary work related activity with compulsory work related activity, and to reduce the income of a large number of people.

Ground 1B: failure to adequately explain the rationale for making the proposals

The court considered the contemporaneous documents at length and found they demonstrated that the proposals were motivated by their fiscal impact, i.e cost saving, at least as much as by their impact on the labour market. Indeed, the consultation operated according to a condensed timeline to ensure that the projected fiscal impact of the proposals could be reported in the 2023 Autumn Budget.

These motivations were omitted entirely from the consultation, which focused instead on how the proposals would create a path back to work for people on disability benefits. The claimant was therefore successful under this ground.

Ground 1C: failure to provide adequate accompanying information about the impact of the proposals

The court agreed with the claimant that, as a result of the "unreasonably compressed consultation timetable", the DWP "only had rough estimates of the potential financial impact" of the proposals at the time of the consultation. The court also agreed that had more time been given to the consultation process, the defendant would likely have had a "strong evidence base" for the proposals, which would have been desirable. However, the court rejected the claimant's argument that the defendant's duty to consult extended this far so as to require e.g. modelling of the potential impacts of different permutations of proposals. The claimant was therefore unsuccessful on this ground.

Ground 2: failure to provide sufficient time for the consultees to respond

The claimant argued that the consultation period of less than eight weeks did not comply with the third Gunning principle, that adequate time must be given for consideration and response to the consultation. How much time is enough is necessarily a fact-sensitive question. However, the court noted the significance of the compressed consultation timetable was that it contributed to (a) the hurried publication of misleading and unfair consultation documents and (b) a failure adequately to explain the proposals or the rationale for making the proposals. Although not decisive, the court considered it relevant that civil servants working on the policy changes themselves had concerns over the rushed timetable.

The court emphasised that "the unfair burden upon vulnerable people of having to deal with yet a further consultation process at this time at such short notice cannot be overstated." Accordingly, the court concluded that the consultation period was unlawfully short.

R (on the application of Sarcp) v Stoke-on-Trent City Council

Background

The claimant, a trade organisation representing care homes in Staffordshire, challenged the decision of Stoke-on-Trent City Council to implement a 1.4% rise in the price to be paid to care home providers. This decision was taken in the context of a contract between the care homes and the defendant, which included a mechanism for annual adjustment to standard rates that the defendant paid to these care homes (the "Contract").

The judgment deals with a number of public law grounds, including consultation, as well as other issues.

Judgment

Ground 1: failure to adequately consult

Whilst there was no statutory duty to consult in this instance, the court held that there was a legitimate expectation of consultation, noting there had been a 'clear and unambiguous promise' to the claimant, through the following statement: "There will be a period of consultation when reviewing the pricing structures that will be reasonable, proportionate and fair where SARCP will be able to make submissions and within the Gunning principles." Even if not a 'promise', this statement reflected a long-established prior practice of the defendant consulting the claimant about contracts and fees, giving the claimant a legitimate expectation it would consult with it this time. In parallel the defendant was under a contractual duty to consult care home providers, but the court did not accept that the two duties cut across each other – rather, the different duties to consult were in harmony because they fed into one consultation exercise involving both the care home providers and the claimant.

The court considered the four Gunning principles and found that there was no breach of the first, second or third principles, noting that the claimant was an expert who knew the relevant considerations which affected the requirements of the second principle. However, the court did hold that the fourth principle had been breached. In this case, the claimant had "submitted an extremely detailed 15-page consultation response" which mentioned the need for the defendant to consider the 'actual costs of care' when deciding on the increase to payments, rather than just the defendant's budget. Such factors were found by the court to have been "effectively ignored". Despite having no hesitation in concluding that there had been a breach, the court explained that this did not inevitably mean the decision had to be quashed or the consultation re-run. The court therefore went on to consider the other alleged unlawfulness before dealing with relief.

Other grounds

The court held that there had also been a failure to take into account relevant Care Act Guidance and statutory factors under the Care Act 2014. Further, the court considered that the defendant had failed to have due regard to the Public Sector Equality Duty and the decision was irrational due to an unexplained evidential gap failing to justify the conclusion, with no reasons given for selecting the increase of 1.4%, still less weighing the interests of the providers and residents.

Public or private law?

The defendant asserted that this was in reality a private law claim masquerading as a public law claim, including arguing that the Contract provided an alternative remedy to judicial review. Having considered the case law in this area, the court analysed what it considered as three strands of the public/private question:

• Amenability to review of the defendant's decision e.g. are there statutory functions involved? Here the defendant was exercising a contractual discretion but in the context of its public law and statutory duties under the Care Act, thereby making it amenable to judicial review.
• Whether the substance of the challenge is private law even if the form is public law, which includes looking at whether there is a sufficient public law element. The court described a "spectrum" of a mixture of public and private law elements, rather than seeing them as separate watertight categories. The question was where on that spectrum the present case lay. Tindal J gave five reasons why the claim had a sufficient public law element to proceed: (i) the claim impacted third parties, (ii) the claimant was not a contracting party to the Contract, (iii) the claimant did not have an alternative remedy in contract, (iv) the claim was truly independent of the Contract, and (v) the claim raised classic public law grounds of challenge.
• Even if there is amenability in public law, does the context narrow the scope of the court's review? Acknowledging that this was a case involving a commercial contract, the court distinguished other cases where a decision whether or not to enter into or renew a contract was under challenge, involving more limited scope for judicial review. This was a decision about fees that had the context of statutory regulation alongside taking effect through a commercial contract. In all the circumstances a light touch supervisory review was appropriate.

Relief

The court considered the question of relief in light of the potential detriment to good administration and impact on third parties. It did ultimately decide to quash the decision and order it to be re-taken, but did not consider it appropriate to re-open the consultation as this would be going further than the unlawfulness that had been found, noting that there had been no unlawfulness in the consultation process leading up to the decision, but only at the outcome stage.

Comment

These cases provide helpful examples of the Gunning principles in operation. In both cases the court considered the particular needs and circumstances of the consultees when making decisions about the adequacy of the consultation, highlighting how the Gunning requirements vary in their application depending on the context. Notably in Clifford there had been many letters of protests from various consultees/stakeholders, but despite this the defendant did not extend the consultation period or provide further information and clarification, which is an important lesson for public bodies conducting consultations.

Away from consultation the analysis of the public/private divide in a commercial contract context in SARCP is helpful guidance in a complex and still developing area of law.