BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Administrative Court) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Leadbetter, R. (On the Application Of) v The Secretary of State for Transport [2023] EWHC 210 (Admin) (03 February 2023) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2023/210.html Cite as: [2023] EWHC 210 (Admin) |
[New search] [Context] [View without highlighting] [Printable PDF version] [Help]
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
Sitting as a judge of the High Court
Between:
____________________
THE KING (on the application of) SARAH LEADBETTER |
Claimant |
|
- and - |
||
THE SECRETARY OF STATE FOR TRANSPORT |
Defendant |
____________________
Mr Robert Williams (instructed by Government Legal Department) for the defendant
Hearing date: 17 January 2023
____________________
Crown Copyright ©
HH JUDGE JARMAN KC:
Introduction
The Guidance
"Authorities or other agencies should carry out appropriately diverse engagement when considering and introducing schemes likely to include tactile paving surfaces. This engagement should take place with those having a good understanding of the ways in which tactile paving should be used. This and related consultation is likely, from early in the process, to include people with and organisations representing those with protected characteristics, including organisations of, or for, vision impaired people, and specialists such as rehabilitation officers or mobility officers. This should ensure that the information received reflects the needs of the population as a whole. Whether national or local groups should be consulted will vary. National organisations should be contacted if technical solutions are being sought as they are more likely to be aware of solutions that have been successfully developed elsewhere. Local organisations should be consulted to prioritise where tactile paving is to be installed. This might identify routes that are frequently used by vision impaired people, or locations that are causing particular problems. It is especially important that local organisations are consulted prior to the installation of the guidance path surface, to ensure it is installed where it will be of real benefit."
"At all vehicle crossovers, a minimum 25mm upstand should be provided between the carriageway and the vehicle crossover. This upstand should help ensure that vision impaired people do not inadvertently venture into the carriageway."
"Where the remaining interface between the footway and the raised carriageway is flush, or has an upstand of less than 25mm, it is vital to ensure that vision impaired people are not able to stray inadvertently onto the carriageway. This could be achieved by creating a level difference between the footway and carriageway of at least 25mm (so that the transition is not actually flush), or by using an appropriate form of physical barrier"
Previous guidance and subsequent research
The decision making process leading to the Guidance
"Please see attached for the drafts of the updated guidance documents (in both PDF and plain text formats). As the documents will need to be evidence-based, we would be grateful if you could use this survey to suggest any published evidence you believe is missing from these drafts by Tuesday 13th April. Your suggested evidence will be used to guide discussion during the workshops"
"At the start of the meeting we were informed that the draft guidance was due to be presented to the [department] the following week and that there would not be any further consultation on the guidance. We were therefore concerned that the workshops were effectively a 'tick box' exercise, and that decisions had already been made in relation to the contents of the guidance. There was clearly insufficient time for our feedback to be incorporated into the drafts before they were submitted to the [department]. This concern proved to be well founded, as none of the feedback that we had provided at the workshops was in fact taken into consideration within the final guidance published on 10 January 2022.
"We want to express our concern with the lack of full and public consultation on these important guidance documents. The contents of the guidance documents in question have significant and serious implications for the lives of blind and partially sighted people, so it is paramount these are properly consulted on and we note that a previous proposed update was subject to a full public consultation. These updated documents must undergo a full public consultation and it is not all clear why this update warrants a different approach to previously.
In addition, the draft documents were only provided to us on the 1st of April, with the ask to review and feed back on any additional evidence to be considered, by 19th April i.e. including the easter break and during the school easter holidays. This was not sufficient time given we are a charitable organisation with many pressures on our time and limited resources. We were surprised to hear that this minimal time allowance for feedback and one workshop per guidance seems to be the extent of this consultation process"
"… some disabled people's organisations, including RNIB and Disability Rights UK, have preferences for some further technical changes - the evidence for which remains equivocal - and for a full public consultation. Disability Rights UK recently wrote to ministers complaining that it had not been properly consulted and requesting a public consultation. Baroness Vere responded setting out that an appropriate level of engagement has been conducted, including with disabled people, with Disability Rights UK invited to take part in consultation workshops during the redrafting."
Duty of enquiry under common law and the Equality Act 2010
"Could a rational decision-maker, in this statutory context, take this decision without considering these particular facts or factors? And if the decision-maker was unaware of the particular fact or factor at the time, could he or she nevertheless take this decision without taking reasonable steps to inform him or herself of the same?"
"(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) tackle prejudice, and
(b) promote understanding.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
"...First, the obligation on the decision-maker is only to take such steps to inform himself as are reasonable. Secondly, subject to a Wednesbury challenge, it is for the public body and not the court to decide upon the manner and intensity of enquiry to be undertaken: see R (Khatun) v Newham LBC [2004] EWCA Civ 55, [2005] QB 37, at para. 35 (Laws LJ). Thirdly, the court should not intervene merely because it considers that further enquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the enquiries made that it possessed the information necessary for its decision. Fourthly, the court should establish what material was before the authority and should only strike down a decision not to make further enquiries if no reasonable authority possessed of that material could suppose that the enquiries they had made were sufficient. Fifthly, the principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant but rather from the Secretary of State's duty so to inform himself as to arrive at a rational conclusion. Sixthly, the wider the discretion conferred on the Secretary of State, the more important it must be that he has all the relevant material to enable him properly to exercise it."
"For Public Realm Schemes, and in line with best practice, it is recommended that a 'standard' kerb height of 125mm should be generally used, though this may be reduced to a desirable minimum of 100mm to suit local site circumstances. Exceptionally, however, where there is a desire to incorporate a lower standard kerb height to that either stipulated here or in DMBR…such as in a public realm scheme where a shared surface street is envisaged, it is recommended that kerb heights should not be less than 60mm. It is also recommended that these lower kerb heights should only be introduced following meaningful consultation with organisations representing the accessibility needs of local people, particularly those with a disability…"
"The matter should have been revisited with the public sector equality duty in mind and Council officials should have prepared for councillors advice in relation to the performance by it of its duties in this regard. A conscious approach to section 75 was required at this stage and officials should have appreciated the need for councillors to receive advice on the equality aspect of the matter now before them, which would have included or be likely to include an analysis of the UCL research and an assessment of the impact of the 30mm kerbs on the position of blind or partially sighted persons."
Grounds 1 and 3: duty of enquiry and rationality
Ground 2: consultation
"i) Irrespective of how the duty to consult has been generated, the common law duty of procedural fairness will inform the manner in which the consultation should be conducted…
ii) The public body doing the consulting must put a consultee into a position properly to consider and respond to the consultation request, without which the consultation process would be defeated...
iii) As I have indicated…, the content of the duty – what the duty requires of the consultation – is fact-specific and can vary greatly from one context to another, depending on the particular provision in question, including its context and purpose…
iv) A consultation may be unlawful if it fails to achieve the purpose for which the duty to consult was imposed…
v) The courts will not lightly find that a consultation process is unfair. Unless there is a specification as to the matters that are to be consulted upon, it is for the public body charged with performing the consultation to determine how it is to be carried out, including the manner and extent of the consultation, subject only to review by the court on conventional judicial review grounds. Therefore, for a consultation to be found to be unlawful, "clear unfairness must be shown"… or as Sullivan LJ said in R (Baird) v Environment Agency [2011] EWHC 939 (Admin) at [51] , a conclusion by the court that: "… a consultation process has been so unfair as to be unlawful is likely to be based on a factual finding that something has gone clearly and radically wrong."
vi) The product of the consultation must be conscientiously taken into account before finalising any decision…"
Conclusions