Court of Appeal Upholds Government's Guidance on Minimum Kerb Height for Visually Impaired Individuals

Citation: [2023] EWCA Civ 1496
Judgment on

Introduction

The Court of Appeal’s decision in the case of Sarah Leadbetter, R (on the application of) v Secretary of State for Transport [2023] EWCA Civ 1496 explores the legality of government guidance on public built environment, specifically focusing on the prescribed minimum kerb height for the safety of visually impaired individuals. The appeal scrutinizes the lawfulness of the consultation process leading to the publication of the guidance and examines the rationality as well as the government’s duty of inquiry in deciding upon the minimum kerb height specification.

Key Facts

The appellant challenged the 2022 guidance which replaced the 1998 guidance on minimum kerb height, arguing that the stipulated 25mm height violates the Secretary of State’s duty of inquiry and is irrational, given that research indicates visually impaired individuals cannot readily detect such a low height. Despite a successful challenge on the consultation process, the High Court did not quash the guidance, leading to the appeal. During the course of history, the 25mm height stipulation has garnered criticism, and calls for updated research resulted in the commissioning of multiple reports, including an ongoing study expected to provide more clarity on the issue.

The analysis primarily hinges on the principles established in Secretary of State for Education v Tameside Metropolitan Borough Council [1977] AC 1014, relating to whether the decision-maker has conducted sufficient inquiry. Moreover, the court’s review is underpinned by the test of rationality, with the extent of inquiry contextualized by the impact of the decision, as observed in R (Refugee Action) v Secretary of State for the Home Department [2014] EWHC 1033 (Admin).

The duty to promote equality under section 149 of the Equality Act 2010 bears relevance, as visual impairment is a protected characteristic. The requirement of having “due regard” necessitates the proper gathering and consideration of relevant information to address the needs of people with disabilities as held in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin).

The decision-making process in issuing guidance requires balanced judgment and taking into account diverse engagements, as highlighted in section 1.6 of the disputed guidance. The court highlighted that infringing upon this high threshold of irrationality is essential for judicial intervention.

Outcomes

The Court of Appeal dismissed the appeal on the ground that there was a rational basis for the guidance, even in the absence of specific empirical evidence endorsing a 25mm kerb height. The expectation of impending research played a significant role in shaping the deemed rationality of the decision to leave the guidance untouched. The court also determined that the guidance did not extend implications beyond its explicitly stated contexts and did not imply general recommended kerb heights for shared spaces or public realms.

Conclusion

The Court of Appeal held that the Secretary of State’s course of action was legally sound. It reaffirmed the importance of rational decision-making in administrative law, emphasizing that an absence of immediate evidence does not automatically equate to irrationality if there is an ongoing inquiry. The court underscored that injunctions to policy guidance require a clear breach of rationality or duty as specified in judicial precedent. The appeal’s dismissal, therefore, serves as a testament to the measured application of legal principles to the intricate balance between policy, empirical research, and the necessity for reasonable governmental inquiries into matters of public concern.

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