Ali v London Borough of Newham [2012] EWHC 2970

Subjects: Judicial Review – Equality Duty – Effect of Non-Statutory Guidance – Due regard to individuals – Due Regard

C had a visual impairment. He challenged the guidance that D had devised to be used in the design and specification of tactile paving in its Borough. The challenge was based in part on D's decision to depart, in its guidance, from the Department of Transport’s national guidance on the use of tactile paving.

Facts

C lived in the Borough of Newham. He had a visual impairment but was also a member and a volunteer for the Royal National Institute for the Blind. D decided to devise and implement its own guidelines on the use of tactile paving in its Borough even though the Department of Transport had itself set out national guidelines on the use of tactile paving. C claimed that, in doing so, D had failed to have due regard to the need to take steps to take account of disabled persons’ disabilities under s.49A of the DDA 1995 (now s.149 EA 2010).

Held

Kenneth ParkerJ described the principal contest between the parties as concerning the “status and effect of non-statutory guidance”. D argued that the court should be slow to convert non-binding guidance into what would in effect be a mandatory rule. ParkerJ held that context was everything and that, when departing from non-statutory guidance, it was incumbent on the public authority to have due regard to the authorship of the guidance in question, the quality and intensity of the work done in its production, and the extent to which the interests of those who were likely to be affected by the guidance has been recognized and weighed. ParkerJ explained that it was not for the Court to make a judgment itself on the merits of the guidance unless it was obviously defective.

Parker J held that the guidance in this case was compiled by the Department of Transport with considerable care and skill and having due regard to all those who might be affected. The guidance was described in mandatory terms because of the compelling need to achieve an acceptable level of uniformity and consistency throughout all localities. ParkerJ concluded that, in the circumstances, D was required to follow the guidance unless it had good reason to depart from it. He held that D did not have a good reason and it was not suggested that there were ”any special circumstances in Newham that made the national guidance inappropriate”. The fact that D had consulted about its decision and had formed its own view on how to balance the needs of affected groups did not provide a good reason for departing from the guidance.

Comment

This case provides a useful indication of the extent to which public bodies may be required to take into account non-statutory guidance. ParkerJ recognised the danger that his decision might make non-binding statutory guidance compulsory and his judgment comes close to doing just that. Where a public body seeks to depart from nationally applicable and recognized guidance then it must have a good reason for doing so. It is unlikely to be sufficient for a public body to profess that it had good reasons for taking the actions that it did and that it had conducted a proper consultation. It is likely to be required to explain instead why it decided to depart from the guidance in the first place and, in particular, why the guidance was not appropriate.

The full transcript can be found here: http://www.bailii.org/ew/cases/EWHC/Admin/2012/2970.html