Ali v London Borough of Newham

Factual and Procedural Background

The Plaintiff, a visually impaired individual residing in The City, and a member and volunteer of Company A, initiated judicial review proceedings challenging a new local guidance adopted by The City ("the guidance") concerning the design and specification of tactile paving. The Plaintiff contended that The City acted unlawfully in adopting this guidance, seeking a declaration to that effect and an order to quash the guidance.

The guidance relates to tactile paving used by visually impaired persons to safely navigate pavements and locate road crossings. The national guidance on tactile paving, produced by the Department for Transport and endorsed by Company A and another relevant entity, sets out detailed design principles, including the use of colour contrasts, layout, and the application of tactile paving at controlled and uncontrolled crossings. The City’s guidance, adopted on 15 July 2010, diverged from the national guidance in significant respects, notably restricting tactile paving to controlled crossings only, using grey colour exclusively, and omitting tactile paving at uncontrolled crossings.

The City conducted pilot schemes, consultations, and equality impact assessments before adopting the guidance. Despite these measures, the Plaintiff challenged the decision on grounds including failure to follow the national guidance and inadequate consideration of statutory duties under the Disability Discrimination Act 1995 (now part of the Equality Act 2010).

Legal Issues Presented

1. Whether The City was legally required to follow the national guidance on tactile paving or could lawfully depart from it.
2. Whether The City complied with its duty under section 49A(1) of the Disability Discrimination Act 1995 (now section 149 of the Equality Act 2010) to have due regard to the needs of disabled persons, specifically the visually impaired, in adopting the guidance.
3. Whether The City’s departure from the national guidance in its tactile paving policy was justified by good reasons, including balancing the needs of visually impaired persons against other pedestrian groups.

Arguments of the Parties

Plaintiff's Arguments

• The City was obliged to adhere to the national guidance unless it had clear and cogent reasons to depart from it.
• The national guidance was specifically designed to promote the interests of a large and important category of disabled persons, namely the visually impaired.
• The City failed to provide adequate reasons for substantial departures from the national guidance, such as omitting tactile paving at uncontrolled crossings and using grey instead of red tactile paving at controlled crossings.
• The City did not properly discharge its statutory duty under section 49A(1) of the Disability Discrimination Act 1995 to have due regard to the needs of disabled persons.

Defendant's Arguments

• The national guidance is non-binding and should be treated as guidance rather than mandatory instruction.
• Local authorities retain ultimate authority and autonomy in matters of local street design.
• The City’s policy was consistent, rational, and proportionate, balancing the needs of visually impaired persons with those of other pedestrians, such as wheelchair users and persons with mobility difficulties.
• Tactile paving was not necessary at uncontrolled crossings, and the use of grey tactile paving at controlled crossings was sufficient to distinguish crossings without causing confusion.
• The City conducted consultations and equality impact assessments, which informed its decision, and there was no evidence of accidents related to the tactile paving policy.
• The national guidance is not comprehensive and may not be appropriate for all locations within The City.
• Other local authorities also depart from the national guidance without legal challenge.

Table of Precedents Cited

Court's Reasoning and Analysis

The court recognised that non-statutory guidance does not have binding legal force, but the weight accorded to such guidance depends on context, including the quality of the research and expertise behind it, the extent to which affected interests are considered, and the importance of the public policy promoted. The national guidance on tactile paving was produced with significant expertise and research, involved consultation with affected groups, and was issued against the backdrop of equality duties requiring due regard to disabled persons.

The court concluded that The City was required to follow the national guidance unless it had good reasons to depart. The City’s failure to provide cogent reasons for departures—such as omitting tactile paving at uncontrolled crossings and using grey rather than red tactile paving at controlled crossings—rendered its guidance unlawful. The City did not adequately address the rationale underlying the national guidance’s provisions, nor did it demonstrate special local circumstances justifying departure.

Subsidiary arguments by The City that the national guidance was not comprehensive or that other boroughs departed from it were not persuasive, as those authorities’ policies and reasons were not before the court. The court emphasized that it was not reviewing the intrinsic merits of the guidance but whether The City lawfully discharged its duties.

Holding and Implications

The court allowed the claim for judicial review, finding that The City’s adoption of the local guidance was unlawful due to unjustified departures from the national guidance and failure to properly discharge statutory equality duties.

The direct consequence is that The City’s guidance on tactile paving, as adopted, is quashed. The decision does not establish new precedent beyond affirming the requirement for local authorities to have good reasons for departing from authoritative national guidance, particularly where equality duties apply. No broader implications beyond the parties are explicitly discussed.