Ali v London Borough of Newham

The Claimant, Mr Mohammed Mohsan Ali, lives in the London Borough of Newham (“Newham”). He is visually impaired. He is both a member and volunteer at the Royal National Institute of Blind People (“the RNIB”). He challenges by judicial review Newham’s new local guidance (“the guidance”) that is intended to be used in the design and specification of tactile paving; and he seeks, inter alia, a declaration that Newham has acted unlawfully in adopting the guidance and an order to quash the guidance.

The Claimant and other visually impaired people (of whom there are about 1 million in the UK), rely on – among other things – “tactile paving” to enable them safely to navigate pavements and locate road crossings, particularly where the kerb is dropped, to make progress easier for people who suffer from mobility difficulties or who use wheelchairs and so on.

The Department for Transport has produced guidance on the use of tactile paving to assist the visually impaired. The national guidance was developed in conjunction with and with the endorsement of Guide Dogs for the Blind and the RNIB. The guidance is applicable nationwide.

On 15 July 2010, Newham adopted guidance for use in the design and specification of tactile paving in its area. The Newham guidance does not follow the national guidance.

Given the grounds of challenge, it is necessary to set out some of the provisions of the national guidance in detail.

The national guidance first emphasises the need for consistency and the importance of contrasts in colour and tone:

“Mobility Of Visually Impaired People

The nature of visual impairment

There are approximately 1 million blind and partially sighted adults in the United Kingdom. Approximately 5% of these people have no sight at all. The remainder have varying degrees of residual sight which may enable them to function visually to different degrees.

The nature of visual loss varies considerably between individuals. The overall picture is a complex one, but generally the result of different eye conditions will lead to the following types of impairment:

•

a limited field of vision - being unable to see to the sides or up and down;

•

some loss of central vision - limiting the ability to see fine detail;

•

acute shortsightedness - seeing the world as a continuous blur;

•

uncontrollable oscillations of the eyeball - leading to an inability to see objects clearly; and

•

night blindness - a sensitivity to light and a tendency to be dazzled by glare.”

The national guidance then describes various mobility aids, including white canes, and continues:

“It also the case that whatever mobility aid is being used, a kerb upstand is an essential indicator of the edge of the footway. However, in recognition of the needs of other pedestrians, it is accepted that it is necessary to have level or ramped crossing points in certain locations. In such locations, tactile paving compensates for the absence of a kerb.”

The national guidance explains what is required. “Tactile paving” is a “profiled paving surface providing guidance or warning to visually impaired people”:

“Key Design principles

There are certain key design principles which, when applied, make it easier and safer for visually impaired pedestrians to move around.

Layouts of all pedestrian areas should be simple, logical and consistent. This will enable people to memorise environments that they use regularly and predict and interpret environments that they are encountering for the first time.

Contrasts in colour and tone should be used to accentuate the presence of certain key features. This will enable many people to use their residual vision to obtain information.

…”

The national guidance stresses the importance of tactile paving in the following passages:

“The use of tactile information

When moving around the pedestrian environment, visually impaired people will actively seek and make use of tactile information underfoot, particularly detectable contrasts in surface texture.

The ability to detect contrasts in texture underfoot varies from one individual to another. For example, older visually impaired people and people who have lost their sight through certain medical conditions, such as diabetes, may well have reduced sensitivity in their feet. It is therefore important that textures warning of potential hazards, for example a road crossing or a staircase, are rigorous enough to be detectable by most people but without constituting a trip hazard or causing extreme discomfort.

…

Using These Guidelines

Tactile paving surfaces can be used to convey important information to visually impaired pedestrians about their environment, for example, hazard warning, directional guidance, or the presence of an amenity. Research has determined that visually impaired people can reliably detect, distinguish and remember a limited number of different tactile paving surfaces and the distinct meanings assigned to them.

The use of blister paving as a warning device at controlled and uncontrolled pedestrian crossing points is now well established. In this document, guidance is given on the use of a number of additional types of tactile surface to give warning of potential hazards and for amenity purposes to give guidance and information.

Recognising that the needs of people with physical and sensory disabilities could create potential conflicts, the research which led to the development of the tactile paving surfaces involved not only the target group, i.e. visually impaired people, but also others with a wide range of other disabilities including wheelchair users and people with walking difficulties.

Each type of tactile paving surface should be exclusively reserved for its intended use and consistently installed in accordance with these guidelines. Visually impaired people are becoming increasingly mobile, both within their local area and more widely, and it is, therefore, very important that conflicting and confusing information is not conveyed.

The successful use of tactile paving also depends on visually impaired pedestrians understanding the different meanings assigned to the paving and being made aware of the presence of such facilities in their area. (emphasis added)

…”

The national guidance also recognises that local site conditions may necessitate departure from the national guidance:

“Where local authorities consider implementing policies which deviate from the advice given in this document, they are strongly recommended to consult the Mobility Unit of the Department for Transport or the Joint Mobility Unit run by the Royal National Institute for the Blind and the Guide Dogs for the Blind Association (see Contacts section) before proceeding. Where local site conditions are such that the guidance contained in this document cannot be implemented, further advice should be sought.”

The national guidance also explains the use of “blister surfaces”:

“The purpose of the blister surface is to provide a warning to visually impaired people who would otherwise, in the absence of a kerb upstand <25mm high, find it difficult to differentiate between where the footway ends and the carriageway begins. The surface is therefore an essential safety feature for this group of road users at pedestrian crossing points, where the footway is flush with the carriageway to enable wheelchair users to cross unimpeded.”

The national guidance recognises that the obligation to have ramps (i.e. lowered kerbs) creates a hazard for visually impaired pedestrians:

“The Disabled Persons Act 1981 requires highway authorities to 'have regard to the needs of disabled persons when considering the desirability of providing ramps at appropriate places between the carriageways and footways'. It is recognised that the absence of an upstand is essential for people using wheelchairs but is potentially hazardous to visually impaired pedestrians who rely on a kerb upstand as a warning that they have reached the edge of the footway. Typically, a kerb upstand is absent when a ramp has been provided between the carriageway and footway as at a crossing; when traffic calming measures have resulted in the level of the carriageway being raised to that of the footway, as at flat top road humps; or when streets have been partially pedestrianised and footways and carriageways are only differentiated by the use of different colours and/or materials.

…

A detectable kerb upstand prevents visually impaired people from unknowingly stepping off the footway into the carriageway. If there is no kerb upstand, some other readily identifiable indicator must be used.

The tactile surface has been developed in order to provide warning and guidance for visually impaired people where there is no kerb upstand. In the case of controlled crossings the tactile surface layout also acts as a guide to lead visually impaired people to the crossing point.

Alternative approaches to the installation of a tactile surface were suggested, most notably the concept of creating a lower height kerb with a small upstand which would both allow access for wheelchair users and provide a warning for visually impaired people. This idea was not accepted because no optimum upstand could be identified which could meet effectively the needs of both groups of people.

The use of the blister surface at uncontrolled crossings was introduced in the 1990s to resolve the problems experienced by visually impaired pedestrians at flush dropped kerbs away from controlled crossings.

The existing profile was developed following a research programme commissioned by the Department for Transport. In the course of further research, which investigated 20 different tactile profiles using volunteers with many different types of disability as well as non-disabled people, it was found that the original surface could be modified so as to be less uncomfortable, particularly to people with arthritis, whilst remaining detectable to visually impaired people. This modification involved flattening the top of the original rounded blister profile.” (emphasis added)

A “controlled crossing” means “pelican, zebra, puffin and toucan crossings and traffic signalled junctions with pedestrian phases”. An “uncontrolled crossing” means “pedestrian crossing points where there is no level difference between the footway and the carriageway. Typically across side roads, or at locations away from junctions”.

On the design of the blister surface (and how that design already strikes a balance with the needs of other pavement users) the national guidance states:

“The profile of the blister surface comprises rows of flat-topped 'blisters', 5mm (±0.5mm) high (Figure 2 ).

The blister surface can be made of any material suitable for footway pavements. It is most commonly supplied in 400mm sq concrete slabs or smaller block paviors. Recognising that the needs of people with physical and sensory disabilities could create potential conflicts, the research which led to the development of the tactile surface involved not only the target group, i.e. visually impaired people, but also others with a wide range of other disabilities including wheelchair users and people with walking difficulties.

The original blister surface which comprised rows of rigorous, rounded blisters around 6mm high was modified several years ago to make it less uncomfortable. The original blister surface should no longer be used.

The blister surface takes account of the needs of the widest range of disabled people, including the many visually impaired people who have lost their sight as a result of diabetes - a condition which also often reduces sensitivity in feet and hands. Because of this, the surface must be fairly rigorous. The layouts set out in this document, therefore, aim to reduce any discomfort which may be caused to people with painful conditions such as arthritis by minimising the amount of tactile surface used and by providing clear pathways around it wherever possible. Above all, it should be remembered that the blister surface is provided as an essential warning to visually impaired people.

The use of certain colours in the surface is recommended as many partially sighted people have sufficient residual vision to detect strong contrasts in colour and tone. Installing the surface in a colour and tone which contrasts with the surrounding footway will provide a visual indication of the limits of the footway. At controlled crossings only the surface should be red to indicate to partially sighted people that the crossing is controlled. Where the surrounding footway or carriageway material is also red then it will be necessary to provide a contrasting border, a minimum of 150mm wide, around the tactile surface. At uncontrolled crossings the surface should be buff or such a colour (other than red) as provides a contrast with the surrounding surface. Some relaxation of the guidance regarding colour may be acceptable in conservation areas and these are discussed in more detail in 1.5.6.” (emphasis added)

As to the location of tactile services, the national guidance states:

“The blister tactile surface should be installed in the absence of an upstand at both controlled and uncontrolled crossing points:

•

where the footway has been dropped flush with the carriageway; or

•

where the carriageway has been raised to the level of the footway.

The surface was originally limited in its use to controlled crossings - pelicans, zebras and traffic signals with pedestrian phases. With the development of new types of controlled crossing, the tactile surface is also for use at puffin and toucan crossings.

In 1991, following extensive discussion and consultation, the use of the surfaces was also extended to include uncontrolled crossing points. The tactile surface illustrated in Figure 2 is, therefore, Guidance on the use of tactile paving surfaces recommended for use at both controlled and uncontrolled crossing points where the footway is flush with the carriageway. At controlled crossings, the surface is also used to lead visually impaired pedestrians to the crossing point.

It was the consensus opinion of those consulted that the same surface, albeit in different colours and layouts, should be used for both controlled and uncontrolled crossing points. There were three main reasons cited:

•

the surface would be serving a similar function for each type of crossing;

•

it would be cost effective; and

•

it would reserve for other guidance and warning messages the limited number of alternative surfaces which have been shown to be detectable by visually impaired people.

Local authorities are strongly advised to adopt this broader application of the blister surface.

Before installing a crossing, it is essential that local authorities:

•

Understand the mobility needs of visually impaired people. Consultation with local groups can play an important part in this process. ...

•

Recognise that schemes which result in carriageways and adjacent footways at the same level, as in partially pedestrianised areas, can be hazardous to visually impaired people. Providing the blister surface along the whole length is expensive and will be confusing. Only at designated crossing points - controlled and uncontrolled - should the kerb be dropped or the carriageway raised to be flush with the footway. At these locations the blister surface should be provided in the appropriate colour and layout.” (emphasis added)

The national guidance provides this strong guidance:

“The New Roads and Street Works Act 1991 requires the replacement of blister surface when it is removed or disturbed in the course of opening the footway by the party disturbing the surface. It is essential that any reinstatement of the surface conforms with the advice in this document.” (emphasis added)

In terms of colour at controlled crossings, the national guidance states:

“The red blister surface should be used at controlled crossings only.

This will further assist partially sighted people to distinguish the presence of a controlled crossing point. It may also be of benefit to sighted pedestrians and may emphasise the presence of a crossing to vehicle drivers.”

As for “general layout”, the national guidance states:

“Where the dropped kerb at the controlled crossing is in the direct line of travel, e.g. at crossing points on junctions, the tactile surface should be laid to a depth of 1200mm [that is, 3 slabs deep]. At all other controlled crossings a depth of 800mm should be provided.”

On 15 July 2010 the Cabinet of Newham met to consider, and to decide upon, the latest design guide. Before the Cabinet was a report for which the Executive Director for Environment was responsible. The circumstances in which the latest guide emerged are set out at paragraph 1.1 – 1.12 of the report.

“1.1

Approval of the Design Guide for Borough Roads was a condition for implementing the Highway Renewal Programme. Version 1 of the Design Guide was approved in May 2009 and enabled work to commence on the first few highway renewal schemes in June 2009.

1.2

The Design Guide includes guidance on tactile paving. This differs from the national guidance produced by the Department for Transport (DfT) in that it is only provided at controlled crossings, it is two rows deep, grey coloured and without tails.

1.3

Over the years, tactile paving has been installed in a variety of different layouts and colours which can be confusing to visually impaired residents. It can also be painful to walk on for people suffering from arthritis and diabetes. A number of London boroughs, including Newham, and Transport for London are now looking at a simplified approach to tactile paving.

1.4

The Council received comments on the Design Guide from the Royal National Institute for the Blind (RNIB) regarding whether the proposed guidelines for the provision of tactile paving in Newham were adequate for the needs of visually impaired residents. The RNIB agreed to await the findings of a pilot and a full equalities impact assessment prior to taking any further action regarding their concerns.

1.5

Ten pilot schemes were implemented in accordance with the Design Guide for Borough Roads. These were chosen from the Highway Renewal Programme and included some schemes that were the subject of complaints. The pilot schemes are located at:

•

Dersignham Avenue, E12

•

Munday Road, E16

•

Hollington Road, E6

•

Monmouth Road, E6

•

Station Road, E7

•

Chesley Gardens, E7

•

Daines Close, E12

•

Barking Road, E6

•

Plaistow Road, E13

•

Prince Regent Lane, E16

1.6

On other schemes, tactile paving was either left in place or the final surface was stopped short of crossing points pending the outcome of an equalities impact assessment.

1.7

In November 2009, a screening/initial equality impact assessment was undertaken. This can be found at Appendix 1.

1.8

In December 2009, officers consulted local residents and interest groups about the pilot schemes. A questionnaire was delivered to approximately 450 properties (see Appendix 2). The covering letter included a link to the Council’s website, where consultees could access general arrangement drawings, safety audits and mobility audits. The covering letter also offered the consultation documents in alternative formats. This offer was taken up by the RNIB, the Guide Dogs for the Blind Association and several local residents. Translation into audio (cassette tape and CD rom), Braille and large print was arranged via the Council’s Language Shop. To make up for the delay in translation, the consultation period was extended by a fortnight. In at least two cases, questionnaires were completed over the phone.

1.9

The Department for Transport (DfT) strongly recommends that when local authorities consider implementing policies that deviate from Guidance on the Use of Tactile Paving Surfaces, they should consult the Mobility Unit of the DfT or the Joint Mobility Unit run by the Royal National Institute for the Blind and the Guide Dogs for the Blind Association before proceeding. When officers requested a meeting with the DfT, their invitation was declined.

1.10

On 18 & 19 January 2010, representatives from the RNIB and a group of blind and partially sighted people who live in East London visited the pilot sites. An assessment from those visits was included as part of the RNIB’s response.

1.11

A summary of the people/organisations consulted and their responses can be found at Appendix 3. This was used to carry out a full equalities impact assessment and to inform the recommendations contained in this report.

1.12

In February 2010, a full Equalities Impact Assessment (EQIA) was undertaken. This can be found at Appendix 4. As a result of the consultation and EQIA, it is proposed to introduce tails at controlled crossings on new schemes. This partially satisfies the concerns of the RNIB and other consultees, who would like the Council to follow the DfT guidance and install tactile paving at uncontrolled crossings as well. Tails will not be retrofitted at controlled crossings on the pilot schemes.”

Section 9 of the report describes the consultation. Newham issued 451 questionnaires, but received only 17 completed questionnaires and 6 letters/e-mails. 6 of the respondents were blind or partially sighted. 8 respondents regarded themselves as disabled, but none apparently used a wheelchair. Under “Comments of the Legal Officer” reference was made to the Disability Discrimination Act 1995, and the report continued:

“8.1

The Disability Discrimination Act 1995 (as amended) places a duty on all public authorities to promote equality of opportunity for disabled people. The duty has two elements: (i) the general duty which requires the Council to eliminate discrimination and to promote equality of opportunity between disabled persons and other persons; and the need to take steps to take account of disabled person’s disabilities, even where that involves treating disabled persons more favourably than other persons and (ii) the specific duty which requires us to prepare and publish our disability equality scheme (DES); and publish an annual report stating how we have implemented it.

8.2

The Council adopted its DES in 2006. This will be subsumed into the Council’s single equality scheme under the new Equalities Act 2010 (due to come into force in October 2010). The use of tactile paving does get a mention in the Council’s current disability equality scheme which contains two directly relevant actions; (a) increase the number of dropped kerbs with tactile paving warning installed and (b) develop our Inclusive Highways Design Guide. The pilot proposed was designed to establish the potential impact of the change from this approach before implementing any change in policy and the Council’s published disability scheme.”

The “Full Equality Impact Assessment” assessed the “overall impact” as follows:

“5.

What is the overall impact of the Project

Positive Impact

The reduction in tactile paving improves mobility for those residents with a physical impairment or wheelchair users. The reduction in tactile paving makes it easier for anyone pushing a pram or push chair to cross the road.

The simplified approach to tactile paving helps visually impaired residents to distinguish between controlled and uncontrolled crossings.

Negative Impact

Blind and partially signed visitors could be confused by the non-standard tactile paving layouts used in Newham.

Not providing tails means that blind people have to walk closer to the kerb in order to locate a safe crossing point.”

On the basis of this information Newham decided to adopt the latest guidance. In Newham, tactile paving “shall only be laid at controlled crossings”. The tactile paving “shall be laid two rows deep with tails”, and “all tactile paving shall be grey coloured”. The reasons for the decision were stated to be:

“To assist visually impaired residents to locate pedestrian crossings.

To help visually impaired residents maintain independent lifestyles.

To comply with the Highways Act 1980.

To resolve a conflict between the Design Guide and planning policy [this “conflict” has not been explained in these proceedings].”

In these proceedings Mr Paul Rogers, Head of Built Environment in Newham’s Highways, Transport & Parking Division made a witness statement in which he referred to the following matters.

First, as regards uncontrolled crossings, he considered that only one per cent of the uncontrolled crossings in Newham were literally “flush” with the road. There were dropped kerbs “which retain a minimal upstand and therefore do not meet the criteria [of the national guidance requiring tactile paving]”.

Secondly, the national guidance is silent in respect of certain flush uncontrolled crossings, for example, at petrol stations.

Thirdly, he believed, on enquiry, that several other London councils departed from the national guidance.

Fourthly, he relied upon the results of the consultation and the Full Equality Impact Assessment to justify the challenged decision.

Fifthly, tactile paving did not appear to be a contributory factor in any accidents causing personal injury since the original introduction of the Newham Design Guide in June 2009.

Finally, he stated:

“11.

Since the introduction of version 2 of the Design Guide in July 2010 the Council has spent approximately £30m of the Highways, Transport & Parking Capital Programme on highway improvement and renewal, including the installation of simplified tactile paving. There is no provision (either capital or revenue) to finance reinstatement of tactile paving in accordance with the national guidelines. In addition the Council would want to avoid a change in version 2 of the Design Guide regarding tactile paving because that would introduce an inconsistency in the provision of tactile paving which is the very antithesis of what the Council has been trying to achieve.”

Mr David Wolfe QC, on behalf of the Claimant, put his case quite simply. Newham was required to follow the national guidance, unless there was good reason to depart from it. Furthermore, the obligation to follow the national guidance in this context was buttressed by Newham’s duty under section 49A(1) of the Disability Discrimination Act 1995 (see now section 149 of the Equality Act 2010): Newham 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”. The disabled group in this case were, of course, the blind and visually impaired.

For the general obligation to follow guidance, Mr Wolfe relied upon Kaur v London Borough of Ealing [2008] EWHC 2062 (Admin) in which Moses LJ (sitting at first instance) stated:

“An Authority is only entitled to depart from the statutory code for reasons which are clear and cogent (see R(Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148). I suggest that that is sufficient authority also for the proposition that any authority would have to justify its departure from the non-statutory guide.” (paragraph 22)

I note in passing that the effect of guidance generally is discussed in De Smith’s Judicial Review, Sixth Edition at 5-120 – 5-122.

As to the duty to have due regard, Mr Wolfe QC referred to the summary by Mrs Justice Lang in R(on the application of JM and NT) v Isle of Wight Council [2011] EWHC 2911 at paragraphs 97-107:

“97.

“Due regard” is the “regard that is appropriate in all the circumstances” Baker, at [31]. The authority must give “proper regard” to all the goals in s.49A in the context of the function it is exercising and, at the same time, pay regard to any countervailing factors which, in the context of the function being exercised it is proper and reasonable for the authority to consider. The weight to be given to the countervailing factors is a matter for the public authority rather than the court unless the assessment is unreasonable or irrational. Baker, at [31]; Brown at [82].

98.

The test whether a decision maker has had due regard is a test of the substance of the matter, not of mere form or box-ticking, and the duty must be performed with “vigour and an open mind”: R (Domb) v Hammersmith and Fulham London Borough Council [2009] EWCA Civ 941, [2009] LGR 843, at [52]; “rigour and an open mind” Brown at [92].

99.

General awareness of the duty does not amount to the necessary due regard, being a “substantial rigorous and open-minded approach”; R (Boyejo) v Barnet LBC [2009] EWHC 3261 (Admin); (2010) 13 CCLR 72 at [58], [59] and [63].

100.

In a case where the decision may affect large numbers of vulnerable people, many of whom fall within one or more of the protected groups, the due regard necessary is very high: R (Hajrula) v London Councils [2011] EWHC 448 (Admin)at [69].

101.

The duty ‘complements’ specific statutory schemes which may exist to benefit disabled people: Pieretti v Enfield London Borough Council [2010] EWCA Civ 1104; [2011] PTSR 565 at [27]-[28].

102.

“Due regard” must be given “before and at the time that a particular policy that will or might affect disabled people is being considered by the public authority in question”: Brown at [91]. Due regard to the duty must be an “essential preliminary” to any important policy decision, not a “rearguard action following a concluded decision”: R (BAPIO Action Ltd) v SSHD [2007] EWCA Civ 1139 at [3]. Consideration of the duty must be an “integral part of the formation of a proposed policy, not justification for its adoption”: R (Kaur and others) v Ealing LBC [2008] EWHC 2062 (Admin) at [24].

103.

If a risk of adverse impact is identified, consideration should be given to measures to avoid that impact before fixing on a particular solution; Kaur and others at [44], R (Rahman) v Birmingham City Council [2011] EWHC 944 (Admin)at [35] (sub-para 8): Domb at [62].

104.

The question of whether ‘due regard’ has been paid is for the Court itself to review – the Court should not merely consider whether there was no regard to the duty at all, or whether the decision was Wednesbury unreasonable; Boyejo at [56]-[57], R (Meany) v Harlow District Council [2009] EWHC 559 (Admin) at [72].

105.

It is good practice for the public authority to make express reference to the statutory duty and the code Baker at [38]; Brown at [93]. But where the public authority is discharging statutory duties in respect of disabled persons, it may be “entirely superfluous” to make express reference to s.49A and absurd to infer from an omission to do so a failure to have regard to the duty: R (McDonald) v Kensington and Chelsea RLBC [2011] UKSC 33; [2011] PTSR 1266, at [24]. The question in every case is whether the decision maker has in substance had due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed; Baker at [37]. The question is one of substance, not form: McDonald at [24].

106.

The public authority must have due regard to the need to take steps to gather relevant information to enable it to perform its duty under s.49A(1)(d): Brown at [85].

107.

There is no statutory duty to carry out an equality impact assessment Brown at [89], Domb at [52]. At the most, s.49A imposes a duty to consider undertaking an assessment, along with other means of gathering information about the impact on disabled people: Brown at [89].”

He also relied upon the observation of Pill LJ in Harris v Haringey [2010] EWCA Civ 703 that observance of the relevant duty required “an analysis of that material [viz relating to the impact of proposals on the protected group] with the specific statutory considerations in mind”.

In short, Mr Wolfe QC contended that no reasons, let alone adequate reasons, had been given by Newham for the substantial departures from the national guidance, and the failure to provide any, or any good, justification for the departure was particularly indefensible in circumstances where the guidance in question was specifically tailor-made to promote the interests of a large and important category of disabled people.

In response, the principal submission of Mr Simon O’Toole, on behalf of Newham, was that the Claimant was placing undue weight on the national guidance. Mr O’Toole drew attention to what Lord Bingham had said in Munjaz regarding statutory guidance:

“20.

If, then, the Code is issued under section 118(1), what is its legal effect in relation to those to whom it is addressed? The trust insists that it is guidance. That is what section 118 requires. The Code itself states in its introduction: "The Act does not impose a legal duty to comply with the Code but as it is a statutory document, failure to follow it could be referred to in evidence in legal proceedings." It describes itself as guidance. There is a categorical difference between guidance and instruction. In calling (paragraph 19.17) for hospitals to have clear written guidelines on the use of seclusion, the Code acknowledges that hospitals are not bound simply to reproduce the terms of the Code. The Secretary of State has a power to give binding directions to hospital authorities (see section 17 of the 1977 Act, in any of its recent amended forms) but that was not the power he was exercising when he issued the Code. No express obligation was placed on hospitals to follow the guidance, an omission which contrasts with other provisions, discussed in the authorities, where such an obligation is found. In response, Mr Munjaz lays emphasis on the consultation which must (and certainly did) precede the drawing up of the Code, on the parliamentary sanction which it received, on the issue of the Code by the Secretary of State as the public officer responsible for the National Health Service and on the high importance of protecting detained mental patients, a vulnerable and defenceless sector of society, from any risk of abuse. These considerations, it is said, show that the Code was intended to be very much more than advice which hospital authorities might choose to follow or not to follow.

21.

It is in my view plain that the Code does not have the binding effect which a statutory provision or a statutory instrument would have. It is what it purports to be, guidance and not instruction. But the matters relied on by Mr Munjaz show that the guidance should be given great weight. It is not instruction, but it is much more than mere advice which an addressee is free to follow or not as it chooses. It is guidance which any hospital should consider with great care, and from which it should depart only if it has cogent reasons for doing so. Where, which is not this case, the guidance addresses a matter covered by section 118(2), any departure would call for even stronger reasons. In reviewing any challenge to a departure from the Code, the court should scrutinise the reasons given by the hospital for departure with the intensity which the importance and sensitivity of the subject matter requires.”

He also relied upon the observation of Lord Bingham that –

“the statutory scheme, while providing for the Secretary of State to give guidance, deliberately left the power and responsibility of final decision to those who bear the legal and practical responsibility for detaining, treating, nursing and caring for the patients.”

Likewise, he submitted, Parliament has left ultimate authority in matters of local street design to local authorities.

It seemed to me that Mr O’Toole’s central argument then ran as follows. Given that the national guidance was no more than guidance, and local authorities had ultimate autonomy in regulating street design, Newham had adopted a policy that was consistent, rational and proportionate, and that 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. Newham had concluded that tactile paving was not needed at uncontrolled crossings. The tactile paving at Newham was uniformly grey: that was sufficient to distinguish the controlled crossing from its surroundings, and the introduction of red tactile pavings in, say, new installations would simply cause confusion. The adopted levels of tiling, though not conforming with the national guideline, were nonetheless adequate. Newham had consulted on the guide and had recognised the equality duty. It had carried out pilot exercises that proved satisfactory. The absence of reported mishap (see paragraph 28 above) showed that Newham was on the right track and no further measures were necessary. Other London boroughs had not followed the national guidance and no one had (yet) suggested that these boroughs were acting unlawfully.

Mr O’Toole also made what I might describe, not disrespectfully, as subsidiary points. First, the national guidance was not comprehensive (footpaths to petrol stations, for example, were not clearly within its ambit) and not necessarily appropriate to all locations (Stratford underground was mentioned). Secondly, “uncontrolled crossings” in Newham were not really a problem, because less than one per cent were “flush”, stricto sensu, with the road.

As to the principal contest between the parties, namely, the status and effect of non-statutory guidance, I recognise some force in Mr O’Toole’s submission that the court should be circumspect and careful so as to avoid converting what is a non-binding guidance into, in effect, mandatory rules. To do so would tend to subvert the intention of the guidance and would risk undermining the autonomy of the primary decision maker upon whom Parliament has conferred ultimate responsibility for discharging the function in question. However, this does seem to me to be yet another area which bears out Lord Steyn’s famous dictum that “in law, context is everything”. In my view, the weight that should be given to particular guidance depends upon the specific context in which the guidance has been produced. In particular (without intending to create an exhaustive list) I believe that it is necessary to give due regard to the authorship of the guidance, the quality and intensity of the work done in the production of the guidance, the extent to which the (possibly competing) interests of those who are likely to be affected by the guidance have been recognised and weighed, the importance of any more general public policy that the guidance has sought to promote, and the express terms of the guidance itself. In my view, it would be unwise for the court to descend into the intrinsic merits of the guidance, unless it was seriously contended that it was unlawful or very obviously defective.

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 furthermore 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. Finally, as shown by the relevant cited passages from the national guidance, the measures are set out in imperative terms, largely because, as Mr Wolfe QC emphasised, there is in the present context a compelling longer term need to achieve an acceptable level of uniformity and consistency throughout all localities.

Given these factors, I conclude that Newham was required to follow the national guidance unless it had good reasons to depart from it. I find no such good reasons. For example, Newham has decided not to have tactile paving at new installations affecting uncontrolled crossings. 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. Again, Newham believes that grey is 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. Newham argued that the introduction of red would be inconsistent and confusing. 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 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) does not, in my view, provide a good reason for departing from the guidance. 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.

As to Mr O’Toole’s subsidiary points, even if there were a relatively small number of “uncontrolled crossings” in Newham, I do not see the basis upon which Newham could simply decide not to have tactile paving at such uncontrolled crossings as might exist. However, it may well be that Newham is not treating a pavement as “flush” with the road where there is an “upstand of 6mm (or less). The reference to 6mm in the national guidance is to a “tolerance” for pavements to accommodate wheelchairs, and it is very doubtful whether a pavement with an upstand of only 6mm (or less) would not be treated as “flush” with the road in the definition of an uncontrolled crossing.

It may also 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. 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. Lastly, I am not impressed by the argument that other London boroughs are also departing substantially from the national guidance. The policies of the boroughs in question were not before the court, and I do not, therefore, know the extent to which other boroughs may be departing from the national guidance or their possible reasons for doing so. I can only deal with the legal merits of the claim in this case.

Accordingly, I find that Newham did not have a lawful justification for departing from the relevant national guidance, in the respects identified by the Claimant, and that Newham’s guide was, therefore, unlawful. I allow this claim for judicial review. In principle, it appears to me that the Claimant is also entitled to the relief claimed in these proceedings.