Sarah Leadbetter, R (on the application of) v Secretary of State for Transport

Public guidance is not irrational merely because a recommendation lacks specific empirical support, provided it has a rational basis, including a reasoned balance between competing interests. A public authority may maintain a limited recommendation while relevant research is incomplete where it recognises evidential limitations, commissions further work and actively discharges the duty of inquiry under [1977] AC 1014 and section 149 of the Equality Act 2010. Guidance must be read in context: a reference to a 25mm upstand in advice about specified tactile-paving situations does not become a general recommendation for kerb heights or shared spaces. Judicial review does not permit substitution of a preferable policy judgment for the decision-maker’s choice.

The claimant challenged Guidance on the use of tactile paving surfaces, focusing on references to a minimum 25mm kerb upstand. The High Court held that the consultation preceding the Guidance was unlawful, but dismissed the claimant’s arguments that the Secretary of State had breached the duty of inquiry or acted irrationally, and did not quash the Guidance. The claimant appealed those latter conclusions. Permission for the Secretary of State to cross-appeal the consultation finding was refused. The Court of Appeal considered whether the 25mm references lacked an evidential basis, extended to shared spaces, or were unlawful under the duties of rationality and inquiry.

1. The appeal was dismissed unanimously. The consultation finding was not in issue on the appeal. The claimant had not appealed the refusal to quash the Guidance.
2. The court rejected the submission that the 25mm references were irrational because they lacked specific empirical evidence. The relevant parts of the 1998 guidance had a rational basis. They reflected full discussion with organisations representing people with different disabilities and judgments balancing their conflicting interests. The Secretary of State was not required to base the recommendation on research directed solely to kerb detectability.
3. The Guidance had to be read according to its stated and limited subject matter. Section 2.1 dealt with a flush pedestrian crossing; section 2.5.4 dealt with vehicle crossovers; and section 2.5.5 dealt with a particular form of raised crossing used for traffic calming. Those provisions did not state or imply that a 25mm kerb was always detectable, or that kerbs of that height should be installed in shared spaces or generally.
4. The duty of inquiry required the decision-maker to ask the right question and take reasonable steps to obtain relevant information. The Secretary of State was not obliged to treat the UCL research as conclusive. He had commissioned further research, knew that the existing research had limitations, and expected the further work relatively soon. In those circumstances, maintaining the limited references pending that research was a rational policy judgment and did not breach the duty of inquiry, including the ancillary duty arising under section 149 of the Equality Act 2010.

1. Court of Appeal (Civil Division): dismissed the claimant’s appeal and upheld the High Court’s rejection of the irrationality and duty-of-inquiry grounds.
2. High Court of Justice, King’s Bench Division, Administrative Court: held that the consultation was unlawful, but dismissed the other grounds of judicial review and declined to quash the Guidance.