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Wheelchair user denied bus access fails in damages appeal

18 January 2017

A wheelchair user denied access to a reserved space on a bus because a mother with a pushchair refused to make way for him, has won a ruling in the UK Supreme Court that the bus company's policy should have required stronger action by the driver, but failed to have an order for damages in his favour restored.

A bench of seven justices agreed that First Group plc's policy should have gone further than simply have the driver request the other passenger to vacate the space, but by a four-three majority held that the findings in the case did not entitle the court to conclude that had it done so, there was a prospect that it would have made a difference to the claimant, Doug Paulley.

Mr Paulley, whose case was backed by the Equality & Human Rights Commission, based his case on the duty to make reasonable adjustments under s 29(2) of the Equality Act 2010. At first instance the recorder found that these could have included a stronger notice to passengers requiring others to move if a wheelchair passenger needed the space, and an enforcement policy requiring passengers to leave if they refused to comply, and awarded £5,500 damages. The Court of Appeal held that it was not reasonable to require positive enforcement by drivers, and reversed the order.

The Supreme Court Justices found it difficult to lay down the extent to which the law could be prescriptive in this area. Lord Neuberger, the President, commented that "at least as a general rule, the law should not normally seek to sanction or otherwise deal with lawful but inconsiderate behaviour, and, similarly, it should not normally enforce basic standards of decency and courtesy. However, we are here concerned with a statute whose purpose is to ensure, within limits, that behaviour is curbed when it results in discrimination under s 29 of the Equality Act 2010. Accordingly, while it is essential that any judicial decision in this area seeks to take into account the realities of life and the interests of others, judges have to do their best to give effect to that purpose, even if it may involve a degree of departure from the general rule".

All seven justices agreed that FirstGroup’s policy requiring a driver simply to request a non-wheelchair user to vacate the space without taking any further steps was unjustified. Where a driver who had made such a request concluded that a refusal was unreasonable, he or she should consider some further step to pressurise the non-wheelchair user to vacate the space, depending on the circumstances.

However an absolute rule that any non-wheelchair user vacate the space would be unreasonable: there were many circumstances in which it could be unreasonable to expect a non-wheelchair user to vacate a space, and even more, to get off the bus, even where the space was needed by a wheelchair user. Even a qualified rule implemented through mandatory enforcement would be likely to lead to confrontation with other passengers, and delay. The approach of the driver had to depend on the circumstances, but where he or she concluded that the refusal was unreasonable, some further step to pressurise the non-wheelchair user to move should be considered, such as rephrasing the request as a requirement (especially where the non-wheelchair user could move elsewhere in the bus), or even a refusal to drive on for several minutes.

On damages, the majority (Lords Neuberger, Reid, Toulson and Sumption held that on the basis of the recorder's judgment it was not possible to conclude that there would have been a real prospect that such an adjustment to First Group's policy would have resulted in Mr Paulley not being placed in the disadvantage that he was, and so an award of damages was not possible. Lady Hale, Lord Kerr and Lord Clarke read the recorder's judgment differently as meaning that had the practice been in force, there was at least a real prospect that Mr Paulley would likely have been able to travel, and this being so, it was unjust to deny him damages.

EHRC chair, David Isaac, called the decision “a victory for disabled people’s rights” and “a hugely important decision, which has helped clarify the current state of the law, and will give confidence to thousands of disabled people in Britain to use public transport”.

Click here to access the decision.

 

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