The issue of wheelchair accessibility on public transport has been brought into focus by the Court of Appeal decision in Paulley v First Group plc, which came out on 8 December. In a landmark decision, the Court overturned the decision of Leeds County Court that bus operators must have in place a policy which requires drivers to compel passengers to move from the wheelchair space to make way for wheelchair users. In doing so, the Court recognised that under present laws, bus drivers simply do not have the power to effectively police the use of the wheelchair space on buses and a common sense approach is required.
Background to the case
Mr Paulley issued proceedings against First Group for unlawful discrimination on the grounds of his disability when he was unable to board a bus because the wheelchair space provided was occupied by a non-folding buggy in which a baby was sleeping. As a result he had to wait for the next bus and he was late to his lunch appointment. Mr Paulley’s legal team advanced a number of reasonable adjustments which it believed First Group should have made to avoid this situation and argued that, by its failure to implement these measures, it had discriminated against Mr Paulley. In response, First Group argued that its policy of requiring drivers to request passengers to move, but not compelling them if they refuse, went far enough to give wheelchair users priority over the wheelchair space.
Leeds County Court ruled in Mr Paulley’s favour and awarded him £5,500 in compensation. Giving his judgment, Recorder Isaacs said that First Group had failed to have in place an effective policy which gave priority to wheelchair users over other passengers – the solution being to change its terms and conditions to require passengers to move from the wheelchair space when it was required by a wheelchair user. First Group was given 6 months to review its policies and make the necessary changes. First Group appealed.
The Court of Appeal decision
In its judgment, the Court of Appeal recognised the sensitivities and the public interest in its outcome; it specifically stated that the appeal was not about whether a non-wheelchair user should move out of the wheelchair or whether mothers should fold their buggies to make room for wheelchair users. The real issue according to the Court was whether a bus company must have a policy to compel all other passengers to vacate the wheelchair space irrespective of the reasons was customer is in it, leaving no discretion to the driver, i.e. a policy of require rather than request.
The Court of Appeal unanimously ruled that such a policy would be "a step too far". The judges examined the various regulations which apply to the bus industry, in particular the Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers) Regulations 1990, which impose certain obligations on drivers and passengers regarding disabled passengers; the Court said that Parliament had chosen not to impose a legal obligation on passengers to move from the wheelchair space, nor had it given drivers a statutory right to compel passengers to move or get off the bus if they refused. Accordingly, the Court was unwilling to impose an obligation on drivers to police the wheelchair space when it had no ability to enforce such a policy.
The Court of Appeal also stated that Recorder Isaacs had misdirected himself when he said that the rights of wheelchair passengers trumped those of all others. In fact, the duty to make adjustments for disabled passengers requires bus operators to take into account other passengers and the inconvenience caused to them as a result of a policy giving priority to wheelchair passengers.
Impact of the decision on other bus operators’ wheelchair space policies
The ‘request but not require’ wheelchair space policy operated by First Group is in line with that of most other bus operators. The Court of Appeal said that imposing a legal duty on bus operators to compel passengers to move from the wheelchair space was a step too far, so it is not immediately obvious what changes, if any, First or other bus operators need to make to their policies.
There is potentially some middle ground between the request policy and the require policy, which could provide for bus drivers to exercise their discretion in any given situation to determine whether someone should be required to move. However, the Court of Appeal made it clear that a watered-down version of the ‘absolute priority’ policy sought by Mr Paulley would simply be unworkable; it would place too onerous a burden on bus drivers to adjudicate between competing claims to the wheelchair space and could cause conflict.
The Court accepted that the policies adopted by most bus operators are cast in a way that seeks to minimise the potential for conflict, whilst effecting some degree of priority for wheelchair users. It is likely therefore that most bus operators will not make any changes to their wheelchair space policy in light of this decision.
What else should bus operators do?
Although the two other judges agreed with the leading judgment of Lord Justice Lewison that a ‘require policy’ was going beyond what was required by law, they both went on to consider whether bus operators had a legal duty to take other steps to remove the potential disadvantage faced by wheelchair passengers.
Lord Justice Underhill stated that he would “hope and expect” that drivers would do more than simply ask passengers to move once and may even threaten not to move the bus until the space was cleared. However, he recognised that this risks seriously inconveniencing other passengers and was “very uneasy” about imposing a duty on bus operators to have a policy requiring drivers to cajole passengers into moving. He also recognised that, in reality, most drivers will already exercise their judgment as to how insistent to be with passengers.
Similarly, Lady Justice Arden said that, although bus operators are not required to compel passengers to move, this does not mean that they are free to do nothing; Arden LJ suggested that bus operators should take “common sense” steps, which would include providing training for bus drivers, devising persuasion strategies, having awareness campaigns, putting up notices and conducting surveys to determine the needs of passengers.
Whilst these comments by and Underhill and Arden LJ do not create binding legal obligations on bus operators, the implication is that bus operators who do not implement these measures could be vulnerable to discrimination claims in future.Therefore, it would be sensible for all bus operators to take stock and consider implementing these measures if they have not already done so.
Mr Paulley now has the right to pursue an appeal to the Supreme Court. However, there are a number of obstacles to overcome before this can happen.
Firstly, the Supreme Court judges have to give permission for the appeal; this is by no means a given, but the Supreme Court is likely to be very interested to hear a case which, on the face of it, appears to limit the statutory protections given to disabled transport users.
Secondly, Mr Paulley will need to secure funding for his appeal to the Supreme Court. The Equality and Human Rights Commission provided funding to enable Mr Paulley to be represented in the Court of Appeal proceedings, but it is not clear whether they will extend this to the Supreme Court. Chris Holmes, the EHRC Disability Commissioner, issued a statement after the decision was published which was highly critical of the Court of Appeal, but he said they would need to “study the judgment” before deciding whether to support an appeal to the Supreme Court.
If the matter does go before the Supreme Court, their say will be final. However, given the significance of the decision for the bus industry and transport sector as a whole, the bus industry should not simply sit back and wait for an outcome; to the extent that bus operators have an informed view on the issue, or there is an ‘industry view’, this should be aired at any Supreme Court hearing (which is possible under the Supreme Court ‘intervention’ rules).
Will the law change in future?
The Court of Appeal said that the proper remedy for wheelchair users is “to ask Parliament to strengthen the powers of bus drivers so that they could…require people to vacate the wheelchair space, or create new duties on other passengers, or to campaign for a different design of buses”.
Coincidentally, the Government is currently consulting on changes to the Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers) Regulations 1990. However, the consultation states that the Government is not at this time proposing any changes to the regulations covering the conduct of drivers and passengers with respect to wheelchair users. The reason given for this is that the DfT “cannot be certain that relying on the Equality Act 2010 would afford disabled passengers the same level of protection provided by the [regulations] whilst travelling by bus.” The implication is that, if anything, the Government was considering scrapping the regulations to avoid overlap with the Equality Act rather than strengthening them.
It remains to be seen whether the Government will change its stance in light of this case. Whether this is likely to happen is far from certain. What is certain is that the wheelchair space issue, however it is addressed in future, will continue to polarise public and political opinion.