In Rennie v Secretary of State for the Home Department in July 2023, the claimants applied for judicial review of a decision of the Secretary of State not to implement public safety recommendations made by the chair of the public inquiry into the Grenfell Tower fire.
The Secretary of State had responsibility for national fire safety legislation and guidance. In 2017, a fire had broken out in Grenfell Tower, a high-rise residential building, and 72 people died. 203 adult residents had been in the building when the fire broke out, 46 of which had sensory, mobility, or cognitive impairments. Of those 46 residents, 19 died (41%), compared to 28 of the 157 with no impairment (18%). The inquiry was tasked with investigating the circumstances of the fire and learning necessary lessons.
The inquiry produced a report in 2019 which included recommendations by the chair to improve fire safety in high-rise buildings. They included urgent recommendations about personal emergency evacuation plans (PEEPs), primarily that "the owner and manager of every high-rise residential building be required by law ... to prepare [PEEPs] for all residents whose ability to self-evacuate may be compromised (such as persons with reduced mobility or cognition)". A PEEP was a specifically designed evacuation plan, tailored to meet a person's specific needs. Government ministers made statements that the recommendations would be accepted in full.
The Secretary of State undertook a consultation exercise on PEEPs in 2021. The consultation document explained that it sought views on implementing the PEEPs recommendations with the intention, subject to consideration of the responses to the consultation, to lay regulations later in 2021. Most responses were in favour of requiring PEEPs, but some consultees raised practicality and cost concerns. In May 2022, the Secretary of State stated that they would not mandate PEEPs at that stage. They undertook a further consultation on a different set of proposals, for Emergency Evacuation Information Sharing+ (EEIS+).
It was held that although the Secretary of State had expressed their decision as being not to mandate PEEPs "at present," that did not obscure the fact that a decision had been made not to implement the PEEPs recommendations. It was for that reason that the PEEPs recommendations had been omitted from the statutory instruments that brought into force many of the recommendations. The PEEPs recommendations were for explicit legal duties and the government's response had ruled out mandating PEEPs. That was a fundamental departure from a core component of the recommendations, and therefore the claim was not premature.
In regards to material considerations the rationale for the PEEPs recommendations was to assist residents who would have difficult self-evacuating in the event of a fire, in order to reduce the risks of their being threatened by fire or smoke and becoming tapped in a burning building. That was a minimum material consideration, one that was so obviously material to the decision that it could not rationally be left out of account. However the evidence showed that the rationale had not been ignored, but that, when balanced with other factors such as practicability, deliverability, complexity and cost, the Secretary of State had made what was essentially a political judgement that the PEEPs recommendations should not be implemented. The Secretary of State had been entitled to consider those countervailing factors and weigh them in balance.
The government's public commitment to implement all the recommendations had given rise to a legitimate expectation that if the Secretary of State contemplated not making good on that commitment, there be a fair opportunity to comment. The PEEPs consultation had been explicit in stating that the intention to implement PEEPs was subject to consideration of the responses to the consultation. It had therefore envisaged the possibility that they might not be implemented. The next question was therefore whether it was fair and proportionate for the Secretary of State to change their mind after analysing the responses to the PEEP consultation. The prospect of not implementing PEEPs had been sufficiently heralded in the consultation document and the responses to the proposals had provided sufficient reasons for a change of mind.
The claimants argued that, since the Secretary of State had decided not to implement PEEPs before consulting on EEIS+, the decision had failed on the requirement in previous case law (R v Brent LBC ex p. Gunning [1985] 4 WLUK 200), that consultation had to be at a time when proposals were still at a formative stage. However there was no breach of that requirement on the facts of this case as the PEEPs consultation had been sufficiently fair to enable the decision to be made not to implement PEEPs. A fresh consultation had then been necessary to obtain views on the proposed alternative, namely EEIS+.
Considering the public sector equality duty, the Secretary of State had been aware of the disadvantage faced in fires by disabled people. The fact that PEEPs would help the disadvantaged considerably had been well known. However the Secretary of State had decided that was outweighed by the practical considerations and that it would be disproportionate to introduce PEEPs. That was a political decision she had been entitled to make. The Fire Minister had made a statement indicating that it was necessary and non-discriminatory to treat disabled people the same as their non-disabled neighbours. That appeared to demonstrate a misunderstanding of equality law that compliance with the law would often involve treating disabled people differently from those who were not disabled. However, the statement was an outlier in the reasoning.
The Secretary of State had understood the rationale for the PEEPs recommendation and that the failure to implement PEEPs would have a disproportionate impact on disabled people, but the evidence from the PEEPs consultation had led them to conclude that it would not be proportionate to introduce PEEPs because of the practical difficulties. There had been sufficient information to enable a reasonable decision to be made. In addition, the Secretary of State had sufficiently considered the ways the adverse impact could be mitigated, as the fire safety measures introduced in response to the chair's other recommendations, and the EEIS+ consultation were considerations of mitigation.
The claimants also argued that the decision not to implement the PEEPs recommendations breached the positive duty to protect life under Article 2 of the European Convention on Human Rights (ECHR). However, the decision had to be seen in the context of the other measures which were relevant to the overall picture of the systems in place to reduce the risks from fire. States had a broad margin of appreciation in complying with the positive duty of Article 2, especially in a difficult social and technical sphere.
The claimants alleged discrimination, in breach of Article 14, prohibition of discrimination, read with Article 2 of the ECHR, in that the failure to implement the PEEPs recommendations would result in disabled people being treated the same as non-disabled people despite being in a relatively difficult situation. The Secretary of State had to show strong, compelling reasons to prove objective justification in this case. Practicality and cost were legitimate aims in the care. Some respondents to the consultation had opposed mandating PEEPs and others had raised misgivings. It had been for the Secretary of State to decide what weight to give them.
"This was essentially a political decision for the defendant to take and was not in breach of the requirements of public law and procedural fairness. It must have been desperately disappointing for the claimants and many others that the carefully considered PEEPs recommendations contained in the Phase 1 Report have not been implemented, but it was not an unlawful decision".
The application was refused.
