Decision to depart from national guidance on tactile paving "unlawful"

A London borough’s decision to depart from national guidance on the use of tactile paving to assist the visually impaired was unlawful, a High Court judge has ruled.

In Ali v London Borough of Newham [2012] EWHC 2970 (Admin), the claimant, who was visually impaired, challenged Newham Council’s decision in July 2010 to adopt guidance for use in the design and specification of tactile paving in its area.

Newham’s guidance did not follow the national guidance produced by the Department for Transport and developed in conjunction with and with the endorsement of Guide Dogs for the Blind and the Royal National Institute of Blind People. In particular, this was the case in relation to uncontrolled crossings and the colour used at controlled crossings.

The claimant’s counsel, David Wolfe QC of Matrix Chambers, argued that Newham was required to follow the national guidance, unless there was a good reason to depart from it.

He added that the obligation to follow the national guidance in this context was buttressed by Newham’s duty under s. 49(1) of the Disability Discrimination Act 1995 (now s. 149 of the Equality Act 2010). Newham therefore had to have ‘due regard’ in particular to the “need to promote equality of opportunity between disabled persons and other persons” and to “the need to take steps to take account of disabled persons’ disabilities”, even where that involved “treating disabled persons more favourably than other persons”.

Newham argued that the claimant was placing undue weight on the national guidance. Its adopted policy was consistent, rational and proportionate, it argued, and took due account of the needs of the visually impaired, balancing those needs against the interests of other pedestrians, such as those using wheelchairs or having difficulty, through disability, in walking over uneven surfaces.

Mr Justice Kenneth Parker said he recognised "some force" in a submission by Newham's counsel that the court should be circumspect and careful so as to avoid converting what is a non-binding guidance into, in effect, mandatory rules".

But the judge ruled in favour of the claimant, saying that the weight that should be given to particular guidance depended upon the specific context in which the guidance had been produced.

He cited a number of factors which meant Newham was required to follow the national guidance unless it had good reasons to depart from it. These were that:

• In this case the relevant national guidance was produced “at a high level and involved those with considerable experience and expertise in the applicable area”. Considerable research was undertaken by skilled workers before the guidance was finalised.
• Those producing the guidance specifically recognised that other groups would be affected. “For example, it was acknowledged that those with physical conditions could well suffer pain and discomfort from walking on tactile paving, but the risk to life and limb of the visually impaired was considered sufficient to justify the measures set out in the guidance.”
• The guidance was issued against the background of the equality duty, by which the needs of the disabled, in casu, the visually impaired had to be given due regard.
• The measures are set out in imperative terms, “largely because…. there is in the present context a compelling longer term need to achieve an acceptable level of uniformity and consistency throughout all localities.”

The judge said he could find no good reasons allowing Newham to depart from the guidance.

“For example, Newham has decided not to have tactile paving at new installations affecting uncontrolled crossings,” he said. “Apparently, Newham believes that tactile paving is not necessary at uncontrolled crossings, but it has not addressed the grounds upon which the national guidance concluded that such paving was necessary, reaching that conclusion after specifically recognising and weighing the interests of other groups of pedestrians.

“It was not suggested that there were any special circumstances in Newham that made the national guidance inappropriate.”

Mr Justice Kenneth Parker said Newham believed that grey was an appropriate colour at controlled crossings, “without addressing the reasoned basis upon which the national guidance concluded that the colour red should be used at such crossings”.

The council had argued that the introduction of red would be inconsistent and confusing.

But the judge said: “The national guidance was introduced against a background in which certain local authorities may not have been using the recommended red colouring. However, the national guidance was intended to create an effective longer term uniformity and consistency (even if in the shorter term different colours might result), and that objective would be likely to be defeated if certain local authorities, confronting a new installation, simply adhered to their current preference.”

The fact that Newham had consulted on its proposals and formed its own view on how to balance the interests of other affected groups against the needs of the visually impaired – “an exercise, of course, specifically embraced within the national guidance” – did not, in the judge’s view, provide a good reason for departing from the guidance.

Mr Justice Kenneth Parker added: “The challenge here is not that Newham has adopted a manifestly unreasonable policy; the claim is that an authoritative and tailor-made national guidance has been produced and Newham has in essence maintained the status quo in the conviction that its existing guide is an adequate response to the problem.”

The judge said it might well be that the national guidance is not comprehensive and that it is not suitable for all locations.

“However, that does not appear to me to be a good reason for departing from the national guidance for locations that are within the guidance and that are otherwise suitable for its adoption,” he said.

“If there are special circumstances justifying departure, that is a different matter and local authorities, as the guidance itself makes plain, remain free to exercise their best judgment to develop a solution that takes into account the specifics of the location and the interests of those affected by the proposed action.”

He also rejected Newham’s argument that other London boroughs were departing substantially from the national guidance.

The judge said the claimant was in principle entitled to the relief sought, a declaration quashing Newham's guidance.