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Focus on Regulation

Guidance on Guidance for Guidance

A recent High Court case (R (Mohammed Mohsan Ali) v London Borough of Newham [2012] EWHC 2970 (Admin)) has provided guidance on the amount of discretion that public authorities have when implementing policies that are subject to national guidance. It makes it clear that the extent of the discretion will depend upon the nature of the national guidance in question, and the greater the quality and detail of that guidance, and the more it takes into account the interests of those likely to be affected by it, the less room for manoeuvre the public authority will have. Where a public authority does make a departure from a provision of the national guidance, not only should it be able to provide an explanation to justify that departure, but that explanation should also address why the rationale behind the particular provision of the national guidance does not apply.

In July 2010, the London Borough of Newham (“Newham LB“) adopted guidance (the “Newham Guidance“) providing for the design and specification of tactile paving in its area. Such paving is an important means by which visually impaired people, of whom there are about one million in the UK, can navigate pavements and locate road crossings. The Newham Guidance did not, however, follow national guidance (the “National Guidance“) for the design and specification of tactile paving that had been introduced by the Department for Transport to assist the visually impaired. In particular, Newham LB determined that tactile paving was not needed at uncontrolled crossings, that coloured paving would cause confusion and that its adopted levels of tiling were adequate.

A visually impaired resident of Newham, Mr Mohammed Mohsan Ali, made a judicial review application to challenge the adoption by Newham LB of the Newham Guidance. He argued that Newham LB was required to follow the National Guidance unless there was a good reason to depart from it, and that, furthermore, this obligation was buttressed by Newham LB’s duty, under section 49A(1) of the Disability Discrimination Act 1995, to have due regard 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“.  Newham LB had not provided any adequate reasons for departing from the National Guidance, and that departure was particularly indefensible in circumstances where the guidance was specifically tailor-made to promote the interests of a large category of disabled people.

Newham LB’s position was that the National Guidance provided guidance only, rather than statutory provisions with binding effect, and Newham had ultimate autonomy in regulating street design. It had adopted a policy that was consistent, rational and proportionate, and balanced the needs of the visually impaired against those of other pedestrians. It had consulted the National Guidance and carried out pilot exercises that had proved satisfactory.

The High Court found that the Newham Guidance was unlawful and granted an order that it be quashed. Kenneth Parker J stated in his judgment that the weight to be given to the particular guidance should depend upon the specific context in which it had been produced (in particular its authorship, the quality and intensity of the work done in the production of the guidance, the extent to which it recognised and weighed the interests of those who are likely to be affected by it and the public policy aims it is intended to promote) as well as upon its express terms. In this case, it was significant that the National Guidance was produced at a high level and involved those with considerable experience and expertise in the applicable area. It was also significant that the measures at issue had been set out in the National Guidance in imperative terms because of the long term need to achieve consistency throughout localities in the design and specification of tactile paving.

These factors added weight to the National Guidance, and accordingly Newham LB was required to follow it unless there were good reasons to depart from it. Newham LB had not provided any. It had come to its own conclusions about the design and specification of paving required, and did not address the reasons why the National Guidance had decided particular provisions (such as tactile paving at uncontrolled crossings) were necessary.