A bus company had a policy that if a wheelchair user needed the wheelchair space, the driver would request other passengers to vacate it, but would not require them to. The Supreme Court held that the driver need not actually require the non-disabled passenger to move, but if after making a request the driver considers a refusal unreasonable, the driver should consider some further step to pressurise the non-wheelchair user to vacate the space.
The claimant was a wheelchair user. He boarded a bus but was unable to use the wheelchair space as it was occupied by a female passenger with a pushchair in which a child was sleeping. The driver in accordance with company policy asked her to fold her pushchair and she refused, saying it did not fold down. The driver felt he could do no more and the wheelchair user had to get the next bus about 20 minutes later. He arrived about 30 minutes late at the station, and missed his train, arriving an hour late at his destination.
The bus company’s policy was that although wheelchair users in principle had priority use of the space, a first come first served principle applied. The driver would ask others to vacate, but if the passenger refused the driver need take no further action.
The County Court held the bus company had failed to make reasonable adjustments. The sign (which said “Please give up this space for a wheelchair user”) should positively require a non-disabled passenger occupying the space to move, and also the driver should require rather than just request non-disabled passengers to vacate the wheelchair space. The court awarded £5,500 damages for injury to feelings.
The Court of Appeal overturned this decision, saying there had been no breach of the duty to make reasonable adjustments. That priority for wheelchair users should always be enforced as a matter of requirement would go beyond what was reasonable to have a policy.
Held by the Supreme Court: by a majority, the sign was sufficient, but not the policy that a driver simply request the non-disabled person to move. Where a driver who has made such a request concludes that a refusal is unreasonable, he or she should consider some further step to pressurise the non-wheelchair user to vacate the space, depending on the circumstances. Accordingly the claimant’s appeal succeeded in part.
However the majority of the Supreme Court were unwilling to let the award of damages stand. This was partly because the “pressurise” adjustment had apparently not been argued to the Court of Appeal, and partly because the County Court had not decided whether on the facts there was a “real prospect” that the policy which the Supreme Court said the bus company should adopt (but not as tough as that wanted by the County Court) would have enabled the claimant to board the bus. (On this “real prospect” test, see Puzzling Paulley decision on step 2 of test for service providers.)
Supreme Court decision
The decision of the Supreme Court focused on what it was reasonable for the bus company to have to do, under the reasonable adjustment duty. The court also discussed Conduct Regulations for public service vehicles (SI 1990/1020) but I don’t deal with those here.
The Supreme Court rejected an absolute rule that non-wheelchair users should always be required to vacate the space. It was not difficult to conceive of circumstances in which it could be unreasonable to expect a non-wheelchair user to vacate the space and, even more, to get off the bus – for example someone elderly and infirm, or accompanying infants, especially if they had an urgent hospital appointment.
What about a policy that non-wheelchair users should be required to vacate the space unless it was unreasonable to do so? This was rejected by the majority in the Supreme Court. Enforcing such a policy would, possibly frequently, be likely to involve confrontation at best and violence at worst. Further, stopping the bus until a non-wheelchair user vacated the space would be unfair to other passengers, particularly in a full bus or one connecting with another service (train or bus).
However, said the majority in the Supreme Court, it was not enough for the bus company to instruct its drivers simply to request non-wheelchair users to vacate the space, and do nothing further if the request was rejected – if the driver concludes that the non-wheelchair user’s refusal is unreasonable. In particular, said Lord Neuberger, where there is some other place on the bus to which a non-wheelchair user could move, he could not 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.
The majority rejected the claimant’s contention that the sign “Please give up this space for a wheelchair user” should have been expressed in more peremptory terms.
Court of Appeal decision
The Supreme Court overturned the Court of Appeal’s decision that it was not reasonable to say the driver need do no more than “request” a non-wheelchair user to vacate the space. However it is useful to set out some other aspects of the Court of Appeal’s decision which were not disputed in the Supreme Court.
Firstly, what was the provision, criterion or practice (PCP) to which any reasonable adjustment duty should be applied? The Court of Appeal said that following the Finnigan case, the PCP was the base position before adjustments are made to accommodate disabilities. Here the PCP was the “first come first served” principle. The bus company’s policy was that the bus driver should request a non-wheelchair user to move, but that was not part of the PCP, rather it was an adjustment to the PCP. The question was whether the adjustment went far enough.
The Court of Appeal (para 22-23) said that under s.6(3) EqA, in relation to disability, a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability, and a reference to persons who share a protected characteristic is a reference to persons who have the same disability. It was common ground in this case that a physical condition requiring the claimant to use a wheelchair was his “particular disability”. It was also now common ground (para 31) that in considering whether the claimant had suffered a substantial disadvantage, the correct comparator was a non-wheelchair user rather than (as the bus company argued before the County Court) non-disabled people with particular difficulties such as mothers with buggies. Note: before the Supreme Court it was common ground that the claimant’s “particular disability” was a physical condition which requires him to use a wheelchair’ (para 20-21).
Did the PCP (“first come first served”) put wheelchair users at a substantial disadvantage, as compared with non-wheelchair users. The County Court held yes, and this was upheld by a majority of the Court of Appeal. The County Court said: “… the disadvantage is not to be gauged merely by reference to the time (number of minutes) that the disabled person is delayed but the fact that he is delayed at all by reason of his inability to take a bus upon which the non-disabled passenger was able to travel without difficulty.” The Court of Appeal doubted that any delay is a substantial disadvantage, but upheld the decision on this point. In deciding whether the comparative disadvantage was “substantial”, it was relevant both whether there would be a substantial risk of the disadvantage occurring (ie of the disabled wheelchair user not being able to travel on a particular bus because the wheelchair space was occupied, while the non-wheelchair user could), and secondly whether, if that happened, it would constitute a substantial disadvantage.
Other points from the County Court decision
In finding there was a failure to make reasonable adjustments, the County Court thought it should consider whether the failure resulted in the claimant being subjected to a “detriment”: s.29(2)(c) Equality Act 2010. (For the Supreme Court approach on this, see Detriment>”Real prospect” test.). The County Court held that yes, the claimant was subject to a detriment, because there was the time delay. The delay was more than an “unjustified sense of grievance”. The bus company argued it could not be blamed for the claimant missing the train as claimant left it ‘tight’. The County Court said even if he did (which was not examined) “in my view a person is entitled to rely on bus and train timetabling to enable him to make travel plans and does not expect or should not have to expect that he is unable to travel as he intended because, as a disabled person, he is unable to take the bus that he planned to take.”
(Note there is a comment by one of the judges in the Court of Appeal, at para 36, that the “substantial disadvantage” must apply to the claimant, rather than just a “detriment”. However, no statutory authority is given for that, and it was not material to the judgment.)
The County Court had awarded damages for injury to feelings of £5,500. An application for injunctive relief was adjourned for 6 months. This was of course overturned by the Court of Appeal decision.
This case contrasts with Black v Arriva North East Ltd, County Court  EqLR 558, May 2013, where the County Court held that allowing the wheelchair space on a bus to be used also by pushchairs on a “first come first served” basis was not a breach of the reasonable adjustment duty. One reason was that it was not a “substantial disadvantage” for the wheelchair user to have to wait for another bus. In Black, the court failed to consider Schedule 2 of the Equality Act, and so looked at the individual disabled person rather wheelchair users as a group.
By contrast, in the Paulley case the courts held there was a substantial disadvantage to wheelchair users – and that the bus company had not taken reasonable steps. There may be differences due to the facts of individual cases, but clearly the Paulley rather than Black should be followed as regards the law, since the latter was only a County Court decision.
It is not clear why the Supreme Court applied a test of whether there was a “real prospect” that the adjustment would have made a difference in the claimant’s case. It is submitted that this test is appropriate for employment cases but not for service providers: see Detriment>”Real prospect” test.
The Paulley case, at least in the County Court, is also interesting for applying the principle in Roads v Central Trains: that the policy of the legislation is, so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public. The approach is not a minimalist one. That principle was not discussed by the higher courts.