High Court decides against quashing kerb height guidance despite flawed consultation

Department for Transport (DfT) guidance recommending a minimum kerb height of 25mm was issued lawfully, even though the DfT failed to properly consult on the decision, a High Court judge has ruled.

The claimant, who is visually impaired, argued that the DfT ignored research showing that a kerb height under 60mm is unsafe for blind or visually impaired pedestrians when formulating its guidance on tactile paving.

In Leadbetter, R. (On the Application Of) v The Secretary of State for Transport [2023] EWHC 210 (Admin), the claimant also argued that the Secretary of State for Transport's consultation, which lasted 12 days, was too short.

Judge Jarman KC, who presided over the case, considered grounds one and three - duty of enquiry and rationality - together as they were related.

Under these two grounds, the claimant submitted that the Secretary of State failed to obtain the information necessary on the impact of kerb heights on visually impaired people and was therefore unable properly to exercise his functions under the Equality Act 2010 or under common law.

Specifically, the claimant said that recommendations for further research on this issue were made repeatedly in reports published between 2015 and 2021, but the results of such research were not obtained before the guidance was published.

It was also argued that the 25mm minimum is "arbitrary", and it is clear from all the reports that a firm recommendation on kerb heights cannot be made without further research.

In response, the Secretary of State submitted that as the 25mm minimum kerb height was contained in guidance from 1998, it was reasonable to maintain this in the guidance pending the results of further research.

The Secretary of State also argued that the guidance deals with a wide range of issues and it was reasonable to update it after some 24 years without waiting for this "very narrow point" to be determined.

Furthermore, the information before the Secretary of State included conclusions that a firm recommendation on kerb heights could not be made without further research. That research was underway and expected in late 2023, and the indication had been given that a further review might be carried out in light of it.

In those circumstances, it was rational in the meantime to maintain the reference to 25mm, the DfT argued.

The judge acknowledged that there was a "clear consensus" in the reports referenced by the claimant that further research was needed before a clear recommendation for a minimum kerb height could be made. But he concluded that three main factors, in particular, indicate that it was a matter of political judgment for the Secretary of State to maintain the 25mm minimum in the meantime.

"First, the results of the research were then expected in a year or so. Second, the guidance deals with a very wide range of topics of which kerb heights was a small (although important) issue, and was in need of updating generally. Third, the guidance makes clear that there should be relevant engagement in schemes for tactile paving surfaces."

Accordingly, he found that the high threshold of irrationality had not been reached to enable the court to interfere, and grounds one and three were not made out.

The judge then turned to ground two, which argued the consultation was not carried out properly.

Under this ground, the claimant submitted that clear unfairness was shown in this case as the consultation period of 12 days in July 2019 was clearly insufficient, having regard to the fact that it fell within the holiday period and in the context that there was no particular urgency.

They added that the consultation was conducted by online survey, in a format not easily accessible to visually impaired people, a request for an extension of time was refused, and the Secretary of State was aware of the need for quantitative evidence.

As a result, the claimant submitted that the 2019 survey was not a consultation but only a "survey".

The judge preferred the submissions of the claimant, noting that: "The 2019 survey was in my judgment part of the stakeholder engagement to inform the process of deciding whether the guidance needed updating, and it is not in dispute that the survey result informed [an independent consultants] 2020 report, from which it is clear that surveys on issues of mobility devices and impacts on those with mental health issues provided valuable information."

He later added: "The 2019 survey was undertaken in the context of the previous reports from 2015 until then which all called for further research. The charities involved asked for more time, and understood that this was a consultation exercise. That request was refused.

"In my judgment a period of 12 days to respond, during a holiday period, when many users were known to be visually impaired, was clearly insufficient. It would have been premature to challenge this exercise until the result of it was known by publication of the guidance."

He also found that a workshop conducted by an independent consultant commissioned by the DfT "clearly amounted to consultation". But just over three weeks' notice was given of the workshop and less for the call for evidence, which was not enough time.

"In my judgment, based on user experience in the real world, there would have been a realistic possibility that further evidence may have come forward. That evidence may well have impacted on references to the 25mm minimum in the guidance pending the further research and review, whether by a change in the figure in the meantime or, at least, by caveats as to detectable kerb heights pending the further research."

Ground two consequently succeeded. But, despite succeeding on ground two, the claimant's representation accepted that it was not sufficient to quash the guidance in respect of the 25mm minimum kerb height.

At the most, declaratory relief as to the lack of proper consultation or enquiry should be sufficient in those circumstances, the judge said.

Adam Carey