Key Issue: Government Consultations and Judicial Review - Analysis of CU v Secretary of State for Education Case

Citation: [2024] EWHC 638 (Admin)
Judgment on


The case of CU, R (on the application of) v Secretary of State for Education ([2024] EWHC 638 (Admin)) explores several significant areas of administrative law, particularly regarding judicial review, consultation requirements, time limits for bringing claims, and the principle that judicial review remedies may be refused if no substantial difference would result. This article will analyze the key topics and legal principles that emerged from the case, linking them to relevant parts of the case summary.

Key Facts

CU, a 12-year-old with special educational needs and disabilities (SEND), challenged one of the consultation questions issued in the SEND Review Green Paper, published by the government. The question (Q7) pertained to the First-tier Tribunal’s (FTT) remedial powers in disability discrimination claims against schools. CU contended that the lack of reference to the FTT’s inability to award compensation was unlawful and contravened the second Gunning principle, as well as being irrational. The defendant, the Secretary of State for Education, disputed this. The High Court had to consider whether permission should be granted to bring the claim, and whether the claim succeeded on the substantive grounds argued.

Gunning Principles

The case heavily relied on the Gunning principles, specifically the requirement for sufficient reasons to be given in consultation to allow intelligent consideration and response. The Court found that these principles did not apply to Q7, primarily because it did not represent a formal proposal for change but rather an invitation for information to inform future policy (Eveleigh [2023] EWCA Civ 810).

Judicial Review Timeliness

The case examined the appropriate time to initiate judicial review in the context of consultation procedures. The Court deliberated whether an applicant could challenge the process at the start of the consultation, after its conclusion, or upon the promulgation of a proposal based on a potentially flawed consultation. While a definitive stance was not adopted, it was suggested that the issue could potentially be addressed at any of these stages, subject to the facts of the case and whether the claim was brought promptly.

‘No Substantial Difference’ Principle

The court interpreted s.31(3D) of the Senior Courts Act 1981 concerning whether the outcome for the claimant would have been significantly different if the conduct complained of did not occur. The defendant contended that the claimant, having had the opportunity to respond to the consultation, would not have experienced a substantially different outcome. However, the Court recognized that it was at least arguable that all respondents should have the chance to respond with full knowledge of the relevant facts, and that it could not be concluded with high likelihood that their input would not have made a substantial difference.


Permission to bring the claim was granted, but the substantive claim ultimately failed on its merits. The challenge based on the second Gunning principle was unsuccessful, as the Court found no specific proposal at hand for the principle to apply. Similarly, the irrationality challenge did not succeed, as the Court determined that the government had no obligation to include the questioned content in the Green Paper. Moreover, the Court did not accept the defendant’s argument on permission and relief based on the ‘no substantial difference’ principle.


The case concludes that the government’s approach to consultation can be subject to judicial scrutiny under Gunning principles but only when those principles are applicable. In this instance, the principles were determined not to apply due to the absence of a concrete proposal. The decision also clarifies that spotting the precise time to bring a judicial review in a multi-staged consultation process relies heavily on the facts of each case, demonstrating the complexity and discretion involved in administrative law procedures. Furthermore, the ‘no substantial difference’ principle requires a nuanced approach when considering whether deficiencies in a consultation process cause significant harm to potential claimants. Overall, the ruling sets a precedent for how courts may address similar future challenges concerning the legality of government consultations and the timeliness of judicial review claims.