Sarah Phillipa Rennie v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Stacey |
| Judgment Date | 14 July 2023 |
| Neutral Citation | [2023] EWHC 1794 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2743/2022 |
[2023] EWHC 1794 (Admin)
THE HONOURABLE Mrs Justice Stacey
Case No: CO/2743/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Raj Desai (instructed by Bhatt Murphy Solicitors) for the Claimants
Alan Payne KC and Rob Harland (instructed by Government Legal Department) for the Defendant
Hearing dates: 6–7 December 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on Friday 14 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This claim concerns the defendant's response to two inter—related public safety recommendations of the Rt Hon Sir Martin Moore-Bick, the chair of the Grenfell Tower public inquiry (“GTI”) made in his Phase 1 report delivered to the Prime Minister on 28 October 2019 (“the Phase 1 Report”). The recommendations were that:
“.33.22(e). the owner and manager of every high-rise residential building be required by law…to prepare personal emergency evacuation plans [“PEEPs”] for all residents whose ability to self-evacuate may be compromised (such as persons with reduced mobility or cognition)”; and
33.22(f). the owner and manager of every high-rise residential building be required by law to include up-to-date information about persons with reduced mobility and their associated PEEPs in the premises information box.”
(“the PEEPs recommendations”).
The first and second claimants, Ms Sarah Rennie and Ms Georgie Hulme, are residents of high-rise and medium rise buildings, respectively, with physical disabilities which compromise their ability to evacuate in an emergency. The third claimant, Claddag, is an unincorporated association, set up by Ms Rennie and Ms Hulme, which campaigns on fire safety issues facing disabled residents. There is no dispute that all claimants have standing to bring this claim.
The defendant is the Secretary of State for the Home Department with responsibility for national fire safety legislation and guidance.
By a claim filed on 29 th of July 2022 the claimants challenge what they say was a decision of the defendant communicated on 18 May 2022 not to implement the PEEPs recommendations and instead consult on a different set of proposals for Emergency Evacuation Information Sharing+ (“the EEIS+ proposals”).
Mr Alan Payne KC for the defendant did not accept that the 18 May 2022 communication constituted a decision and asserted that the claim was premature as no decision on the implementation of the PEEPs recommendations has yet been made. The consultation period was ongoing. Whether a decision had been made and the stage reached in the formative process was a point of sharp disagreement between the parties. But in any event Mr Payne disputed that any of the grounds had been made out. Furthermore he relied on s.31(2A) Senior Courts Act 1981 (the 1981 Act) to say that even if the court were to find any breaches of public law, the outcome would not have been substantially different.
On 5 September 2022 Mrs Justice Steyn considered that the case was arguable and granted permission on all 5 grounds, ordered that the hearing be expedited and granted a costs capping order limiting the liability of the claimants to pay the defendant's costs to £20,000 including VAT and the liability of the defendant to pay the claimants' costs to £70,000 including VAT.
The parties had agreed a list of issues:
i) What has been decided, and in particular what has been decided in relation to implementation of the PEEPs recommendations following the PEEPs consultation and publication of the EEIS+ consultation.
ii) Pursuant to Ground 1:
a) Whether there was a failure to have regard to mandatory material considerations in reaching the decision; and
b) In particular, whether the matters pleaded by the claimants constitute mandatory material considerations and if so whether the defendant has failed to take these into account.
iii) Pursuant to Ground 2:
a) Whether a procedural legitimate expectation of consultation in respect of any departure from the PEEPs recommendations (and the reasons for it) was generated on either of the bases outlined by the claimants;
b) Whether any such legitimate expectation had been breached; and
c) Whether the defendant can justify any breach of legitimate expectation.
iv) Pursuant to Ground 3:
a) Whether the PEEPs consultation process was so unfair as to be unlawful; and
b) In particular, whether the EEIS+ consultation discharges the defendant's duty to re-consult.
v) Pursuant to Ground 4, whether the requirements of the public sector equality duty in s.149 of the Equality Act 2010 (“PSED”) were breached.
vi) Pursuant to Ground 5:
a) Whether this ground is barred by ss.6(6) of the Human Rights Act 1998.
b) Whether, on the evidence before the Court, the relevant framework of laws and guidance applicable to stay put buildings discharges the State's positive systems duty under article 2 ECHR.
c) Whether, on the evidence before the Court, the relevant framework of laws and guidance applicable to stay put buildings violates article 14 ECHR (read with article 2).
vii) Whether the Court is required to refuse relief pursuant to ss.31(2A) of the Senior Courts Act 1981.
Grounds 1 to 4 were procedural and ground 5 substantive, since it was alleged that there was an unremediated gap in the state's obligation to protect life. Declaratory relief was sought and a quashing of the decision not to implement the PEEPs recommendations. The remedy sought was a procedurally fair consultation process prior to a decision concerning their implementation.
To set the scene, a PEEP is a specifically designed evacuation plan, tailored to meet the specific needs of a person with reduced mobility or who would have difficulty self-evacuating in the event of a fire. The aim of a PEEP is for residents and those responsible for the management of fire safety in a building to have thought through the available options in advance of any emergency, to consider how a resident who would have difficulty self-evacuating could evacuate safely in light of fire safety information and the existing fire safety strategy for the building. PEEPs are a familiar concept in workplaces such as offices, hospitals and care homes.
At the risk of stating the obvious, there is an important distinction between the concepts of “evacuation” and “rescue”. An evacuation is the process whereby people leave a building in case of an incident, such as fire, to reach a place of safety, whereas a rescue is where a person receives physical assistance to get clear of the area involved in the incident. A PEEP is an evacuation plan that is intended to be executed without relying on intervention from the Fire and Rescue Service (“FRS”) to make it work.
At the heart of the complaint, it was said that the defendant had repeatedly and publicly committed itself to implementing the PEEPs recommendations for high rise flats along with other urgent fire safety improvement actions identified by the Chair of the GTI in the Phase 1 report. It had also specifically undertaken to consult solely on the PEEPs recommendations and any proposed departure from them (in a consent order settling an earlier judicial review claim brought by the daughter of one of the Grenfell Tower victims, Ms Mona Aghlani). It was the claimants' case that the defendant must have accepted the Chair's basis for the recommendations which were predicated on the safety risks that required urgent remediation. However after consulting on how to implement the PEEPs recommendations, the defendant decided not to implement them, without ever having consulted on the question of whether to implement them. Their further consultation exercise on the EEIS+ proposals, which were said by the claimants to be of a wholly different nature to the PEEPs recommendations, did not address the lacuna and in any event took place too late, after a decision not to implement the PEEPs recommendations had been made. As a result, the claimants and any other interested members of the public had been denied the opportunity to input on the question of whether there should be a departure from the PEEPs recommendations through a consultation process.
History and background facts and the current position
The Regulatory Reform (Fire Safety) Order 2005 (“RRO”) was laid before parliament pursuant to s.6 Regulatory Reform Act 2001 to reform the law relating to general fire safety in non-domestic premises and the common parts of multi-occupied residential buildings to consolidate and rationalise existing fire safety regulation. It imposes various fire safety duties on persons with control of non-domestic premises and the common parts of multi-occupied residential buildings (“responsible persons” (“RPs”) as defined in article 3). There is a duty to take general fire precautions (article 4) and more specific duties (article 8–22) including a duty to relevant persons (which includes all residents) to ensure an emergency plan and that it is possible for them to evacuate the premises in the event of danger (articles 15 and 14(2)(b)).
The RRO principally adopts a risk-based approach to fire safety requiring RPs to ensure that general fire precautions are in place (article 9) and states that the RPs need to record the prescribed information, specifically as outlined in article 7 (b) in relation to “any group of persons identified by the assessment as being especially at risk.”
By article 50 the defendant must ensure that such guidance as she considers appropriate is available to assist RPs in the discharge of their duties under articles 8–22.
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