Court of Appeal rejects kerb height guidance appeal brought by visually impaired campaigner

The Court of Appeal has dismissed a legal challenge appealing a High Court decision that found kerb height guidance from the Department for Transport (DfT) was lawful on all grounds.

In Leadbetter, R (On the Application Of) v Secretary of State for Transport [2023] EWCA Civ 1496 (20 December 2023), Lady Justice Elisabeth Laing considered arguments from the appellant on the impact of the kerb height recommendations on blind and disabled people.

Previously at the High Court, the appellant, who is visually impaired, argued that the DfT issued its guidance without proper inquiry into the effect upon visually impaired people, without adequate consultation, and that the approach was irrational.

Central to the claimant's argument that the Department failed to inquire properly was the existence of a series of recommendations for further research on kerb heights made in reports published between 2015 and 2021.

The claimant also referenced 2009 research from University College London (UCL), which concluded that to be confident visually impaired people could detect kerbs, the height should be 60mm or higher.

Part of the Department's response to the arguments was 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 research that the Department had commissioned.

On the consultation ground, Judge Jarman KC found that the DfT's consultation, which ran for 12 days over a holiday period, was "clearly insufficient".

But the High Court judge ultimately concluded that the threshold of irrationality was not met and the guidance could not be quashed.

At the Court of Appeal, Laing LJ found that the arguments raised the following three main questions:
• Is the guidance unlawful because it repeats material from the 1998 Guidance for which there was, and is, 'no evidence'?
• Does the guidance have any implications for kerb heights in shared spaces?
• In the light of those matters, was the publication of the relevant parts of the guidance irrational, or based on a failure to make the reasonable enquiries required by the Tameside case and/or by section 149 of the Equality Act 2010?

She rejected the first issue as the relevant parts of the 1998 Guidance "do not reflect, and were not required to reflect, a view or recommendation based on specific empirical 'evidence' about what height of kerb can be detected by visually impaired people". She also found that the guidance had a rational basis.

Turning to the second issue, Laing LJ said: "I do not consider that the relevant parts of the guidance can or should be interpreted as having any implications beyond the three situations in which they are stated to apply.

"The impugned passages make no express or implied assertions that, in shared spaces, or elsewhere, visually impaired people are always able to detect kerbs which are 25mm high, and/or that kerbs of that height should therefore be installed in shared spaces, or more generally, elsewhere."

Responding to the third issue, Laing LJ said: "My conclusion on [the appellant's] first argument partly answers this question. There was a rational basis for the limited references to 25mm upstands in the 1998 Guidance.

"The next question is whether, in the light of the UCL research, the Secretary of State could lawfully have issued guidance which continued to have the limited references to 25mm upstands."

She found that the Secretary of State's position was lawful and that he was not obliged to accept the UCL research as the last word.

It was not irrational to issue the guidance in the terms he issued it, nor did he breach his duties of inquiry, she concluded.

Lord Justice Singh and Lord Justice Lewison both agreed with Laing LJ's decision to dismiss the appeal.

Adam Carey