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

The Court of Appeal dismissed the appellant's challenge to the Secretary of State's decision to retain references to a 25mm kerb upstand in guidance on tactile paving. The court applied the established duty of inquiry (Tameside principle) and section 149 of the Equality Act 2010 when assessing whether the Secretary of State had made reasonable inquiries and acted rationally. The court accepted that the only direct empirical study (the UCL research) suggested higher detectable kerb heights but also found that that research had limitations and that the Secretary of State had commissioned further research (TRL and subsequent projects) which was ongoing.

The court upheld the High Court's finding that the consultation leading to the Guidance was unlawful because interested charities were not consulted at a sufficiently formative stage and were not given adequate time to respond, but it did not quash the Guidance because the short-term retention of the 25mm references was a policy judgment open to the Secretary of State pending the results of the ongoing research. The court concluded there was no irrationality or breach of the duty of inquiry in maintaining the limited 25mm references in the Guidance.

Background and parties. The appellant sought judicial review of guidance published by the Secretary of State for Transport on 10 January 2022 (which replaced earlier guidance from 1998). The challenge concerned references in the Guidance to a minimum kerb upstand of 25mm and alleged (i) a breach of the duty of inquiry (Tameside principle) and of the public sector equality duty under section 149 of the Equality Act 2010, (ii) irrationality in retaining the 25mm figure in the absence of an adequate evidential basis, and (iii) an unlawful consultation process. The claim was heard in the Administrative Court by HHJ Jarman KC; the claimant appealed to the Court of Appeal with permission.

Relief sought. The appellant sought judicial review relief in respect of the Guidance, including effectively quashing or changing parts of the Guidance that referred to a 25mm kerb upstand (and associated declaratory relief) and contended the consultation and decision-making process was unlawful.

Facts and evidence. The 1998 Guidance included references to a 25mm minimum kerb upstand. Subsequent concerns about detectability by visually impaired people led to research by University College London (UCL), which recommended 60mm to be confident of detection; the UCL study had limits (small sample, controlled conditions and no consideration of wheelchair users). The Secretary of State and Transport Scotland commissioned further work and instructed TRL to review the evidence and consult stakeholders; TRL concluded more research was required and additional research projects were begun but were not complete at the time of the High Court hearing.

Procedural posture and issues before the Court of Appeal. The High Court held the consultation was unlawful but did not quash the Guidance. The appellant appealed against the dismissal of her remaining grounds (irrationality and failure of inquiry); the Secretary of State sought leave to cross-appeal against the finding on consultation but was refused.

Court's reasoning and disposition. The Court of Appeal examined (i) whether the impugned passages amounted to a general recommendation that 25mm kerbs are detectable in all contexts (including shared spaces), (ii) whether the Secretary of State had acted irrationally in retaining the 25mm references in the absence of conclusive evidence, and (iii) whether the duty of inquiry under Tameside and the equality duty required different steps. The court held the challenged passages were limited in scope and did not constitute a universal recommendation for 25mm kerbs across the public realm; the existence of the UCL study did not render the Secretary of State's position irrational, particularly as further research had been commissioned and the technical evidence was contested. The court therefore dismissed the appeal against the Judge's refusal to quash the Guidance on those grounds, while confirming the earlier conclusion that the consultation itself had been unlawful. The court emphasised that issues about shared spaces and minimum kerb heights remained subject to the ongoing research.

Appeal dismissed. The Court of Appeal held that (i) the limited references to a 25mm upstand in the Guidance were not irrational and did not breach the duty of inquiry or the public sector equality duty given the acknowledged limits of the existing evidence and the fact that further research had been commissioned; (ii) the consultation process was unlawful (as found below) but that did not compel quashing of the Guidance because retention of the 25mm references pending imminent research findings was a lawful policy judgment.

Appeal from the Administrative Court (King's Bench Division) before HHJ Jarman KC (CO/1273/2022). The appellant obtained permission to appeal from Andrews LJ. The Secretary of State was refused permission to cross-appeal against the High Court's finding that the consultation was unlawful. Final determination in the Court of Appeal: [2023] EWCA Civ 1496.