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

A public authority must make reasonable enquiries before adopting or maintaining guidance where the consequences are significant. The extent of the enquiry is context-specific and is reviewed on ordinary rationality principles. A court should not intervene merely because further enquiries would have been sensible.

Where consultation is undertaken, it must satisfy common-law fairness. Consultees must have a fair opportunity to understand and respond to the proposal, and the authority must conscientiously consider the responses before deciding. Consultation which is materially too short, inaccessible, or undertaken when the proposal is insufficiently formative may be unlawful. Declaratory relief may be adequate where quashing would be disproportionate or unnecessary.

The claimant, a visually impaired person supported by leading charities, challenged guidance issued by the Secretary of State for Transport concerning tactile paving and minimum detectable kerb heights. The guidance recommended a minimum kerb upstand of 25mm.

The claimant alleged failure to make proper enquiries, breach of the public sector equality duty under section 149 of the Equality Act 2010, irrationality, and unlawful consultation. The court considered research indicating uncertainty about the appropriate minimum height and the adequacy of stakeholder engagement. The central issues were whether the Secretary of State acted unlawfully by maintaining the 25mm figure and whether the consultation process was fair.

1. Grounds 1 and 3 dismissed. The common-law duty of enquiry and the duty arising under section 149 of the Equality Act 2010 required conscious consideration of relevant information, including the needs of visually impaired people. The applicable question was whether reasonable steps had been taken to inform the decision-maker. The threshold was rationality, assessed in context.
2. The fact that 25mm had appeared in guidance for 24 years did not itself justify retaining it, particularly given uncertainty about its original evidential basis and subsequent research. However, reports showed a consensus that further research was required. The Secretary of State was entitled to treat retention of the figure as a political judgment pending research because the results were expected within about a year, kerb height was only one part of guidance covering a wide range of topics, and the guidance required relevant engagement in individual schemes.
3. Ground 2 succeeded. The 2019 survey formed part of stakeholder engagement and the 2021 workshops amounted to consultation. In the circumstances, 12 days for the survey and approximately three weeks for the workshops were inadequate. The process did not give visually impaired consultees a realistic opportunity to provide evidence, and the workshops were held when the draft guidance was close to submission. There was a realistic possibility that further evidence might have affected the treatment of the 25mm figure.
4. The consultation was therefore unlawful, but quashing the guidance was unnecessary. The research was expected later in 2023 and an early review could be undertaken. Declaratory relief concerning the inadequate consultation, and any further consequential order to be agreed or determined on written submissions, was sufficient.

First-instance judicial review. No appeal history is stated in the judgment.