Supreme Court Rules on Wheelchair Access, but are things any clearer?

On 18 January 2017 the Supreme Court of England and Wales announced its decision in the dispute over wheelchair access on buses which has been going since 2012. The ruling that "bus drivers must try to persuade other passengers to make room for wheelchair users" has been heralded as a landmark victory by both sides with bus operators welcoming the Court's clarification and guidance, and disability campaigners highlighting Mr. Paulley's victory (although the original decision to allow him compensation was not upheld).

The decision suggests that drivers may be justified in delaying a journey's progress "with a view to pressurising or shaming recalcitrant non-wheelchair users to move" but many readers may also be aware of the Wakefield case in which, a few days after the decision in Mr. Paulley's case was published, a wheelchair user (Kirsty Shepherd) was denied access to a bus when the wheelchair user space was occupied. In the 'real world' therefore, the jury is still out in determining what effect the decision in Mr. Paulley's case will actually have and it may be that Parliment will need to consider legislation to clarify the legal position on both sides.

Mr. Paulley's case:

The case of FirstGroup Plc v. Doug Paulley arose when Mr. Paulley, a wheelchair user living in the North East of England, attempted to board the 9.40 bus (being operated by FirstGroup) to Leeds. The space that is normally allocated for the use of wheelchair users was occupied by a lady with a sleeping child in a pushchair.

A notice was present on the bus, which stated "Please give up this space for a wheelchair user". At the point when Mr. Paulley attempted to board the bus the driver requested that the lady fold down the pushchair and move from the space. The lady refused to move. As a result of this refusal Mr. Paulley was not allowed to board the bus and so had to wait for the next one with the result that his journey was delayed.

The Road to the Supreme Court:

Mr. Paulley issued proceedings against FirstGroup for unlawful discrimination on the grounds of his disability. His claim was successful at trial and he was awarded £5,500.00 in compensation.

FirstGroup appealed against this decision successfully and persuaded the Court of Appeal (in a unanimous decision) that FirstGroup was not required by law to force one passenger to make way for another (even in the event of a disability) and the company's 'provision criterion or practice' ("PCP") did make sufficient reasonable adjustment so that Mr. Paulley was not unfairly disadvantaged.

Mr. Paulley then appealed to the Supreme Court where his case was considered by seven Lord Justices including the President (Lord Justice Neuberger) and the Deputy President (Lady Justice Hale).

Why did the Supreme Court rule in Mr. Paulley's favour on the main issue?

Readers will likely know that the Supreme Court judges unanimously decided to allow Mr. Paulley's appeal on the main issue and ruled that FirstGroup's PCP requiring a driver simply to request a non-wheelchair user to vacate the space that is normally reserved for a wheelchair user did not go far enough.

The question that operators will be asking themselves is 'what then does the court require of us in terms of a policy?'

This is how Lord Justice Neuberger sought to answer this question -

"A driver may form the view that a non-wheelchair user is reasonable in refusing to move from the space. If the driver considers that that is so, or even probably so, then it would not, at least normally, be unreasonable for any request to move not to be taken further. However, where the driver concludes that the non-wheelchair user's refusal is unreasonable, it seems to me that it would be unjustifiable for a bus-operating company to have a policy which does not require some further step of the bus driver in any circumstances. In particular, where there is some other place on the bus to which a non-wheelchair user could move, I cannot see why a driver should not be expected to rephrase any polite request as a requirement, and, if that does not work and especially if the bus is ahead of schedule, why the driver should not be expected to consider whether there was any reason why the bus should not stop for a few minutes with a view to pressurising or shaming the recalcitrant non-wheelchair user to move."

And he went on to say -

"The very fact that, under FirstGroup's current PCP... drivers were expected to request a non-wheelchair user to vacate a space needed by a wheelchair user, at least if there is a place for the non-wheelchair user to move to on the bus, demonstrates that drivers can be expected to show a degree of initiative - and to see whether or not there are spare places on the bus. I therefore find it hard to see how it could be unreasonable to expect FirstGroup to train its drivers to do a bit more, when appropriate, if and when an initial request is not complied with."

How Should Operators Respond to this Ruling?

The two areas that require attention from operators flow directly from the Supreme Court's decision:

Firstly operators should be reviewing their written policies to ensure that what those policies say dovetails with the Supreme Court's decision.
Secondly, operators will need to look at the training that they provide to drivers and the steps that they require drivers to take in order to seek to resolve difficulties if and when they arise with non-wheelchair users who refuse to move from designated wheelchair spaces to make room for a wheelchair user.

Wording in the Operator's Written Policy

Making revised policies work 'on the ground' is the real challenge. Relying upon drivers to apply their initiative is common sense and perfectly reasonable (and something most drivers do anyway), but making sure that an operator's policy is applied fairly and consistently by all its drivers will likely prove easier said than done and it will not happen by accident.

One solution would be for operators to draw up a checklist detailing the points that a driver should consider and including the assessment that a driver makes before deciding what action, if any, to take.

A reasoned decision based on sound criteria (the reason(s) why a person refuses to move, the availability of alternative space on the vehicle for the non-wheelchair user(s), the language that has been used to try to persuade the non-wheelchair user(s) to move, and the degree to which the vehicle is 'ahead of schedule' and therefore how much time is available to try to resolve the situation - always being mindful of the penalties for late running and the potential tension between spending time resolving these types of issues and risking a failure to keep up with a service timetable) can all be included in the checklist and drafted in such a way that the driver could make a record quickly of all such incidents so that a 'reasoned' decisioin is taken and noted down.

The operator's policy would no doubt require the driver to hand in all such records when returning to base, probably with a view to discussing the incident with the traffic office and perhaps reviewing (or at least retaining) any CCTV in case of follow up.

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Article first appeared in I-Croner. Copyright Richard Pelly February 2017