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

The claimant challenged guidance published by the Secretary of State for Transport in January 2022 which recommends a minimum detectable kerb upstand of 25mm. The challenge relied on (i) a common law duty to make adequate enquiries, (ii) irrationality, and (iii) inadequate consultation and breach of the public sector equality duty under section 149 of the Equality Act 2010.

The court held that, although substantial reports and a University College London study raised concerns that 25mm may be insufficient for many visually impaired people, the high threshold for irrationality was not met. The Secretary of State reasonably retained the 25mm figure pending further research which was already commissioned and expected within a year, the Guidance covered a wide range of issues and included a requirement for local engagement.

However, the court found the consultation and engagement process (including a 12-day survey in July 2019 and short-notice workshops in April 2021) to be unfair and insufficiently formative for the purposes of the public sector equality duty and common law fairness. The claimant succeeded on the consultation ground and the court indicated declaratory relief was appropriate rather than quashing the Guidance.

Background and parties: The claimant, supported by three charities for visually impaired people, challenged updated departmental guidance on tactile paving and inclusive mobility published 10 January 2022. The Guidance retained a minimum detectable kerb upstand of 25mm. The defendant was the Secretary of State for Transport. The claim was brought by judicial review in the Administrative Court.

Nature of the claim and relief sought: The claimant sought relief on three principal grounds: (1) failure to make adequate enquiries under the common law duty; (2) irrationality in retaining the 25mm figure; and (3) unfair consultation and failure to comply with the public sector equality duty (Equality Act 2010, section 149). The claimant sought quashing or other relief in relation to the Guidance.

Procedural posture: First instance Administrative Court hearing; judgment delivered by HH Judge Jarman KC. The Guidance and the decision-making process were considered on the material before the court, including reports and correspondence summarised in the judgment.

Issues framed by the court:

• Whether the Secretary of State failed to make reasonable enquiries (common law) and to have due regard under section 149 Equality Act 2010 such that the decision was irrational;
• Whether the consultation and stakeholder engagement processes were lawful and fair in substance for the purposes of common law fairness and the public sector equality duty;
• Appropriate remedy if unlawful process or decision found.

Court's reasoning and conclusions: The court accepted there was an evident consensus in successive reports (from 2015 onwards) that further field research was required to resolve the appropriate detectable kerb height, and noted the UCL PAMELA study which recommended a 60mm minimum for confidence of detectability. TRL and departmental workstreams had reviewed evidence and commissioned further research expected in due course.

The court concluded that the maintenance of the longstanding 25mm figure in updated guidance was not irrational in context: the figure had existed since 1998, there was uncertainty about the UCL study's application to real-world conditions, further research was already commissioned and expected soon, and the Guidance addressed many topics beyond kerb height. For those reasons the threshold for irrationality was not reached and grounds of enquiry and irrationality (grounds 1 and 3) failed.

By contrast the court found the consultation and engagement process unfair in respect of the visually impaired stakeholders. The July 2019 online survey allowed only 12 days during a holiday period and was not made available in accessible formats; the April 2021 workshops were short-notice with limited time for tailored evidence and took place after drafts were already being finalised. Given the known importance of the issue and the identifiable consultees, the consultation was insufficiently formative and the claimant had a realistic possibility of obtaining further evidence. Ground 2 therefore succeeded.

Remedy and outcome: The court declined to quash the Guidance in relation to the 25mm figure given the expectation of imminent research results and the public interest in leaving guidance in place pending reconsideration. Instead the court granted declaratory relief as to inadequacy of consultation/enquiry and invited the parties to agree draft orders within a short timescale.

This was a first-instance judicial review. Grounds 1 (duty of enquiry/common law) and 3 (irrationality) were dismissed: the court was not satisfied that the Secretary of State's decision to retain the 25mm minimum was irrational given the longstanding figure, the existing uncertainties in the evidence and that further research was already commissioned and expected. Ground 2 (consultation/public sector equality duty) succeeded: the court found the stakeholder engagement (including a short July 2019 survey and limited-time April 2021 workshops) to be unfair and insufficiently formative given the importance of the issue to visually impaired people. The court declined to quash the Guidance; declaratory relief as to the lack of proper consultation/enquiry was ordered and the parties were invited to agree a draft order.