Representatives from IATA, the Civil Aviation Authority, Virgin Atlantic, Gatwick Airport and rights group Flying Disabled met at the 2nd annual GTDT Aviation Law News conference at Clyde & Co’s London offices last month to discuss the various ways industry stakeholders are working to make air travel more accessible for passengers with reduced mobility (PRMs).

Christopher Wood, founder of campaign group Flying Disabled, opened the session with an explanation of some of the issues facing PRMs, especially those who rely on wheelchairs, when travelling by air.

Wood noted that while air travel is fairly routine for the majority of able-bodied passengers, it can be a “painful process” for PRMs and those with other disabilities. When boarding their flight, PRMs are usually “manhandled as best as possible” from their own equipment into aisle wheelchairs, then “trundled up the aisle of the aircraft”, he said, before being transferred to their allocated seat by cabin crew.

It is not yet safe for passengers to take their own wheelchairs into the cabin of an aircraft and remain in them during their flight, Wood noted, adding that personal wheelchairs are required to be stored in the hold where they may or may not survive the journey in one piece. Wood said instances in which wheelchairs arrive “smashed or broken” are “becoming all too regular”.

Meanwhile the Montreal Convention, which establishes airline liability for death or injury to passengers and damage or loss of baggage, does not provide for proper compensation in such instances, Wood argued.

Wood urged delegates to view a wheelchair in the same way they would view their own legs, saying “it’s fairly cruel and archaic to value someone’s legs the same as a suitcase of clothes.” Wood referred back to Quadrant Chambers barrister Jonathan Chambers’s comments in the previous panel, which looked in detail at UK and international caselaw that upheld the Montreal Convention’s exclusivity over PRM regulations – “good law getting to a bad result” – noting that to him it seems “absolutely incredible that we cannot do something about this”.

In his opinion, some airlines “hide behind” article 22 of the convention which limits the liability of carriers in the case of destruction, loss, damage or delay of property to €1,000 when faced with claims for damaged wheelchairs, which are often valued at more than €15,000.

One solution to the risks posed to expensive equipment in the hold is to bring them into the cabin, Wood said, adding that he was working alongside the Heathrow Access Advisory Group (HAAG), which aims to promote accessibility at the airport, and equipment manufacturers to explore options for creating an air-safe wheelchair. He acknowledged that airlines would have concerns about the number of seats that wheelchair accessible space on an aircraft would displace – approximately four per wheelchair – but noted that with an estimated 85% to 90% fill rate throughout the year, there was probably “a little bit of wiggle room” in this regard.

Wood noted that some of the major aircraft managers had been giving air safe wheelchairs and wheelchair spaces on board aircraft “serious attention”, speculating that this might be – at least partially – due to the Air Carriers Access Act, introduced to the US Senate in June 2017. The Act aims to protect the rights of disabled passengers travelling by air and mandates a study looking into air-safe wheelchairs that would be “accommodated on board aircraft through in-cabin wheelchair restraint systems”. He said it was “perfect timing” that the legislation had received final approval from the Senate and the US House of Representatives as part of a bumper package of reforms re-authorising the Federal Aviation Administration the day before the conference took place – “they’ll now head to the president for his signature, so we’ll see what kind of mood he’s in.”

Providing good customer service to PRMs and other disabled customers is not just the right thing, Geraldine Lundy, passenger accessibility manager at Virgin Atlantic said, it is also a “fantastic business opportunity”. Research – such as an April 2018 study by the American Institute of Research looking into spending power of adults with disabilities – have shown that the travel and tourism industry is losing out on a significant chunk of business by not making air travel accessible.

Lundy outlined several measures that Virgin had taken in pursuit of this market, including offering passengers with hidden disabilities a “discrete symbol” or badge they can identify themselves with, accessible tablets for in-flight entertainment, training programmes to familiarise guide dogs with the aircraft environment and free-of-charge visits to training aircraft for disabled passengers to determine if they can fly “comfortably and safely”.

Alongside the FAA Reauthorisation Act, Lundy noted that the European Commission’s proposed European Accessibility Act discussed ways of using technology to make air travel accessible for passengers with disabilities, seeking to improve the “functioning of the internal market for accessible products and services by removing barriers created by divergent legislation”, including services related to air as well as other forms of transport.

James Fremantle, consumer enforcement manager at the UK Civil Aviation Authority (CAA), noted that airports also have a role to play in ensuring that disabled passengers are able to safely travel by air. The CAA is focused on accountability for airports through a performance framework measuring accessibility, and working with both airports and airlines to improve services for passengers with hidden disabilities, he said.

The framework, formulated in 2014 in response to requirements in EC regulation 1107/2006 concerning the rights of disabled persons and persons with reduced mobility, operates on a principle of “reputational regulation”, Fremantle explained, under which airports are publicly praised or shamed for their performance in an effort to drive improvement.

Fremantle said that while the framework had “really driven” airports to improve their accessibility, there are still “things that are going wrong”, noting that there had recently been incidents in which passengers complained that staff had prioritised operational concerns over customer service.

Fremantle further said that airlines have their own part to play in making airports accessible as well as aircraft, especially as the funding for UK airports comes from a charges on airlines. The CAA is “frustrated” with the ongoing negotiation between airlines and airports over how these charges are levied, he said, adding that both had a “moral obligation to provide a quality service”.

Fremantle told delegates that he did not want to be wholly negative about the aviation industry as the CAA is “proud of it and the improvements [airports have] made over the last few years”. He noted that the regulator had produced guidance – known as CAP1411 and CAP 1629 – for airports on supporting passengers with hidden disabilities, including disability awareness training packages for staff, and ensuring that airports have systems in place to receive information from airlines concerning disabled passengers and their needs when passing through the airport.

Shortly after the conference, on 15 October, the CAA announced it had published new industry guidance on assisting passengers with hidden disabilities, calling for airlines – as well as airports – to have a “clear and accessible” system to request special assistance for disabled passengers on booking.

Airlines should share information about a passenger’s assistance needs with their own organisation and with the airport, the guidance said, and invest in quality training for staff so hidden disabilities can be identified and passengers assisted accordingly. It also called on airlines to ensure that disabled passengers be seated with a travel companion free of charge, and that they should be looked after in the event of flight delays or cancellations.

Robert Williams, commercial operations manager at Gatwick Airport in London, put the CAA’s rules and regulations into a practical context, focusing on airports’ obligations to provide passengers with disabilities with an “equal opportunity to access the airport and fly”.

Gatwick aims to make passengers’ experience of using the airport “safer, simpler and more comfortable” to give people more confidence to fly from their local airport, from the UK and around the world, Williams said. He identified five key areas that Gatwick focuses on to achieve this goal: infrastructure; information; engaging with stakeholders (such as airlines, customers, regulators and disability organisations); staff training; and the airport’s special assistance service, which he noted has to be adaptable and efficient, enabling access for all disabled customers, not just PRMs.

Rapidly growing passenger numbers present a challenge to providing an effective service for disabled passengers, Williams acknowledged, as this puts pressure on the airport’s special assistance service and infrastructure, such as lifts, corridors and the size of seating areas.

Gatwick also faces a capacity issue as it only has one runway and delays or cancellations to services can make planning difficult and compromise the promptness of assisting passengers to board aircraft. Williams also flagged concerns about recruitment, unpredictable factors such as scheduling and understanding the specific needs of individual passengers, and a small number of people who would seek to misuse the assistance service as simply a “fast-track” through the airport.

There has to be “joint accountability” for both airports and airlines in improving accessibility, Williams said, noting that to improve the service, airports need to increase the amount of information that they receive from customers so that they have the most comprehensive idea of the services that they need to provide when passengers arrive at the airport.

Linda Ristagno, external affairs manager at the International Air Transport Association (IATA), drew the panel to a close with an overview of current international regulation concerning passengers with disabilities and looked to the future, considering potential solutions to issues still faced by the industry in making air travel fully accessible.

There is no standard international definition of disability, she noted, despite an increase in individuals with disabilities due to population ageing and the rapid spread of chronic diseases and governments recognising conditions as disabilities that they had previously not considered.

Regulations concerning passengers with disabilities often change from state to state, Ristagno said, influenced by the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and sustainable development goals. She noted that these passengers represent “a growing market and the industry wants to embrace ways to welcome and deliver value for them”.

The challenge for international aviation bodies is applying overarching human rights conventions into air transport systems, she said. She added that IATA was at work outreaching to all appropriate stakeholders to propose core policy principles that can best support the needs of passengers with disabilities while taking into account airlines’ operational procedures and safety requirements.

IATA is also working with state regulators and with some disability associations and organisations to develop solutions, such as improving communication between stakeholders in the airline industry and technological developments to ensure that industry processes are fit for the purpose of welcoming passengers with disabilities while airlines continue to operate in a safe, secure and efficient manner, she said.

This includes ensuring that passengers and their mobility aides – such as battery-powered wheelchairs – can be safely loaded and that the needs of all potential stakeholders are considered, working with and for passengers, which both she and Christopher Wood believe to be “very much part of the future”.

The session formed part of an afternoon of presentations and discussion around the legal environment for PRMs, which saw speeches by Baroness Sugg and Sharon Goodsell of the UK Department for Transport and a panel on caselaw and regulation led by lawyers from host firm Clyde & Co.