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

20 December 2023

[2023] EWCA Civ 1496

Court of Appeal

A group challenged government guidance on pavement design, specifically a 25mm minimum kerb height. The court said the government hadn't acted unreasonably in keeping that measurement even though research suggested a higher height was better. The court agreed the consultation process was flawed but did not overturn the guidance.

Key Facts

•Appeal against dismissal of two grounds for judicial review of guidance on tactile paving surfaces published by the Secretary of State for Transport.
•Guidance refers to a minimum kerb height of 25mm, challenged by the appellant as breaching duty of inquiry and being irrational.
•Guidance replaced 1998 guidance, also referencing 25mm kerb height, lacking clear basis for the figure.
•UCL research suggested 60mm minimum kerb height for visually impaired detectability but had limitations.
•Subsequent reports called for further research, which was commissioned but incomplete at the time of the appeal.
•The consultation process leading to the guidance was deemed unlawful by the Judge due to insufficient time for response and lack of consultation at formative stages.

Legal Principles

Duty of inquiry: Decision-maker must ask the right questions and take reasonable steps to find relevant information.

Secretary of State for Education v Tameside Metropolitan Borough Council [1977] AC 1014

Extent of inquiry depends on the importance of the decision.

R (Plantagenet Alliance) v Secretary of State for Justice [2014] EWHC 1662 (Admin)

Due regard to Equality Act 2010, section 149 (visual impairment as a protected characteristic) requires gathering relevant information to account for disabled persons' needs.

R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin)

Judicial review is not an appeal; rationality of a public authority's decision is tested.

Various decisions cited in paragraph 40

Outcomes

Appeal dismissed.

The Judge's decision on the remaining grounds of appeal was considered open to him on the evidence. The Secretary of State's decision to retain the 25mm kerb height was not irrational, given the commissioned research and the limited scope of the guidance's application.

Judge's finding that the consultation was unlawful was not appealed.

Insufficient time given to charities to respond and lack of consultation during formative stages.

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