Sarah Phillipa Rennie & Ors v Secretary of State for the Home Department

A public authority may decide not to implement a public-safety recommendation if it has treated the recommendation’s safety rationale as a mandatory material consideration and has rationally balanced it against practicability, proportionality, complexity and cost. A consultation may lawfully proceed on the basis of preferred proposals, provided consultees are sufficiently alerted that the decision-maker may change course and a further consultation addresses materially different alternatives.

The public sector equality duty requires conscientious consideration of obvious equality impacts, reasonable enquiry and consideration of mitigation, but does not require a particular procedure or substantive outcome. Disability equality may require different treatment of disabled people. The failure to mandate personal emergency evacuation plans was not unlawful under public law, the European Convention on Human Rights, or the Human Rights Act 1998.

The claimants, including disabled residents of high-rise and medium-rise buildings and a disability-action group, challenged the Secretary of State’s decision not to implement recommendations of the Grenfell Tower Inquiry concerning personal emergency evacuation plans and information in premises information boxes.

The challenge concerned the alleged failure to consider mandatory material considerations, breach of a procedural legitimate expectation, unfair consultation, breach of the public sector equality duty, and breach of articles 2 and 14 of the European Convention on Human Rights. The claimants also challenged the subsequent Emergency Evacuation Information Sharing+ consultation as inadequate and premature.

The central issues were whether a decision not to implement the recommendations had been made, whether the consultation process was lawful, and whether the decision was compatible with public law, equality duties and Convention rights.

1. Decision and prematurity. A decision had been made by late March 2022, and communicated on 18 May 2022, not to mandate the recommended PEEPs scheme. The claim was therefore not premature. The later EEIS+ proposals were materially different, particularly because they applied principally to buildings with simultaneous evacuation strategies and concerned information-sharing and possible rescue rather than mandatory evacuation plans.
2. Mandatory material consideration. The safety rationale underlying the Inquiry’s recommendations was so obviously material that it could not rationally be ignored. The defendant had considered it, but was entitled to weigh it against practical deliverability, complexity, proportionality and cost. The challenge concerned the intensity of the enquiry rather than a failure to consider the rationale, and ground 1 failed.
3. Legitimate expectation and consultation. The Government’s repeated commitment to implement the recommendations, reinforced by the Aghlani consent order, created an expectation of a fair opportunity to comment on any departure. The PEEPs consultation sufficiently alerted consultees that the proposals might not be adopted and allowed alternative views to be expressed. The EEIS+ consultation then addressed the substantially different alternatives. The change of mind was not unfair or unlawful.
4. Public sector equality duty. The defendant understood that non-implementation would disproportionately affect disabled people and others with relevant protected characteristics. The decision-maker had sufficient information, made reasonable enquiries and considered mitigation through wider fire-safety measures and the EEIS+ proposals. A ministerial statement that disabled residents should stay put like their neighbours appeared to misunderstand disability equality law, but was an outlier and make-weight which did not represent the overall reasoning. The statutory duty was not breached.
5. Convention rights. The challenge was not excluded by section 6(6)(a) of the Human Rights Act 1998. The existing framework of legislation, guidance and fire-safety measures reduced the risk to life to a reasonable minimum, and the decision fell within the State’s margin of appreciation under article 2. The claimants established differential treatment within article 14, including Thlimmenos discrimination, but the defendant proved objective justification. A high level of scrutiny and cogent, weighty reasons were required, and were established by the practical, safety and cost concerns.
6. Disposition. Grounds 1 to 5 failed. The claim was dismissed. It was unnecessary to decide the defendant’s alternative argument under section 31(2A) of the Senior Courts Act 1981.