Ali v London Borough of Newham

Non-statutory guidance is not automatically binding, but its legal weight depends on context. Relevant factors include its authorship, the quality of the work supporting it, whether competing interests were recognised and weighed, the public policy pursued, and the guidance’s own terms.

Where national guidance is authoritative, carefully researched, tailored to the needs of a vulnerable group, and intended to secure consistency, a local authority must follow it unless it has good reasons to depart. Consultation, an equality assessment, and a rational preference for an alternative policy do not by themselves provide such reasons. A departure must engage with the evidential and policy grounds of the national guidance and identify any special local circumstances making it inappropriate.

The claimant, a visually impaired resident, challenged by judicial review a local authority’s guidance on tactile paving. The authority’s policy substantially departed from national guidance by restricting tactile paving to controlled crossings, using two rows with tails, and prescribing grey paving.

The authority relied on consultation, pilot schemes, an equality impact assessment, the interests of wheelchair users and people with mobility difficulties, and the non-binding character of the national guidance. The central issues were the legal weight of the national guidance and whether the authority had lawful reasons for departing from it.

1. The claim was allowed. The local guidance was unlawful, and the claimant was in principle entitled to the relief claimed.
2. Non-statutory guidance does not have the force of a statutory provision or statutory instrument. The court must nevertheless assess its weight in context. Relevant considerations include the authorship of the guidance, the quality and intensity of the work undertaken, the extent to which competing interests were recognised and weighed, the public policy pursued, and the guidance’s express terms.
3. The national tactile-paving guidance had been produced by expert bodies after substantial research. It expressly recognised the interests of wheelchair users and others with mobility difficulties, but concluded that the safety needs of visually impaired people justified the recommended measures. Its imperative terms reflected the need for long-term uniformity and consistency, against the background of the equality duty.
4. Newham was therefore required to follow the national guidance unless it had good reasons to depart from it. It had not shown such reasons. In particular, it had not addressed the grounds on which the national guidance required tactile paving at uncontrolled crossings or the reasoned basis for red paving at controlled crossings.
5. Consultation, the equality impact assessment, pilot schemes, the absence of reported accidents, and Newham’s attempt to balance competing interests did not justify departure. Nor did the possibility that the national guidance was incomplete or unsuitable for some locations justify departure where a location fell within its scope. Local authorities remained free to devise solutions for genuinely special circumstances, but those circumstances had not been established.