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Cite as: [2005] CSIH 17, [2005] ScotCS CSIH_17
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Davies v. Renfrewshire Council & Anor [2005] ScotCS CSIH_17 (11 February 2005)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Marnoch Lady Cosgrove Sir David Edward
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[2005CSIH17] XA24/04 OPINION OF LORD MARNOCH in APPEAL From the Sheriffdom of North Strathclyde at Paisley by RENFREWSHIRE COUNCIL Appellants; in the cause EDWIN DAVIES Appellant and now Respondent; against RENFREWSHIRE COUNCIL First Respondents and now Appellants; and PAISLEY AND GLASGOW AIRPORT TAXIS LIMITED Second Respondents:
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Act: Skinner; Brodies, W.S. (for Peacock Johnston, Glasgow) (Appellant and Respondent)
Alt: Sir Crispin Agnew of Lochnaw, Q.C.; Simpson & Marwick, W.S. (First Respondents and Appellants)
11 February 2005
[1] This is an appeal to the Court of Session on a point of law under para. 18(12) of Schedule 1 to the Civic Government (Scotland) Act 1982. [2] The appeal raises a short, but important, point regarding the proper construction of section 10(3) of the 1982 Act which is in the following terms:"(3) Without prejudice to paragraph 5 of Schedule 1 to this Act, the grant of a taxi licence may be refused by a licensing authority for the purpose of limiting the number of taxis in respect of which licences are granted by them if, but only if, they are satisfied that there is no significant demand for the services of taxis in their area which is unmet."
"Mr. Davis (sic) then made his submission to the Board. He advised that he had bought two wheelchair accessible vehicles following the Board's decision to grant the licences in October 2002. However, because of the subsequent appeal in respect of that decision those taxis had been sitting idle. He advised that he had to close his business on a Sunday in order to cut wages. He said that things were presently very difficult, but he was managing to survive despite the setback.
He advised that he provided an excellent service for the disabled in the Paisley area. He advised that they (sic) were few if any complaints. He advised that before he commenced providing a service for the disabled community there had been many complaints. He advised that he never let customers down and always guaranteed to take them wherever they wanted to go. He said that there was a need in this regard and that he was trying fulfil that need. He said that with a further two taxis an even better service would be provided for the disabled community.
Counsellor Mullin asked Mr. Davis what evidence he had of demand. Mr. Davis replied that every job his business undertook was logged, that they did all the business at Wallace Court, they undertook social work contracts and individual bookings. He advised that they took business not just in Paisley but elsewhere as well."
"The Board accepted that there was a difficulty in reconciling general demand for the services of taxis with the specific demands of special needs groups. On the question of general demand the Board was more than satisfied given the terms of the recent report from the Fraser of Allander Institute and all the other material before it that no case had been made that there was significant general unmet demand. The Board, however, did accept that as things stood there was an argument that the number of disabled access taxis operating in the Paisley area was inadequate. However, the Board's view was that this matter had been fully addressed and properly considered separately by the Council when it formulated its policy which required all taxis to become fully wheel chairs accessible within the next few years and many years in advance of Government proposals.
The Board felt that to issue extra taxi licences on an ad hoc basis was not the way forward to address such specific needs given the Council's separate policy on this matter.
Furthermore, should further licences be issued on this basis then this would have the effect of weakening the Council's policy on the numbers of taxis and indeed would set a precedent which could in effect make this policy redundant.
In all the circumstances the Board was not prepared to make an exception in this case and decided to adhere to their policy as they were not satisfied that there was significant demand for the services of taxis in the area which was unmet and accordingly they refused the applications in terms of Section 10(3) of the Civic Government (Scotland) Act 1982."
"If one segment of the population have (sic) an inadequate number of taxis suitable for their need and if this segment of unmet demand is significant then the grant of a taxi licence cannot be refused."
There is also a short passage in her judgment in which she expressed the view that it was apparent from the Statement of Reasons that the licensing authority were well aware that they did have a discretion and that they exercised it. It is, I think, possible that the sheriff is here referring to that residual discretion which must always be retained by a licensing authority in the implementation of its policy as to the assessment of demand. If, however, she is referring to that quite separate and general discretion afforded by the opening words of the subsection, then, for the reasons given above, I must respectfully disagree with her.
[8] Sir Crispin submitted that "demand" for purposes of section 10(3) could only be meaningfully assessed by reference to the needs of the community looked at as a whole. In that connection he referred to a number of cases in which the court had approved policies formulated by local authorities on that basis - see e.g. Douglas v. City of Glasgow District Council 1996 S.L.T. 713, where an overall requirement for 1,428 licences had been assessed; Coyle v. City of Glasgow Council 1997 S.C. 370 where that same assessment was held to be out of date but where otherwise the approach appeared to have been approved. According to Sir Crispin it would be impossible to operate that sort of policy if additional licences had to be granted in respect of "special needs". This was because it was not possible to restrict these additional licences to dealing only with these special needs; - Maud v. Castlepoint Borough Council [2002] EWCA Civ 1526; 2003 R.T.R. 7. On the contrary, the additional vehicles would, to some extent, - perhaps a large extent - be employed in meeting the demand of the community at large. This, in turn, would undermine or destroy the overall policy. Moreover, it could not be assumed that the numbers of additional vehicles would be small, particularly if account were to be taken of demand by disabled persons in the street or at ranks. It was also possible that other "segments" of the population, such as the inhabitants of a particular housing estate, could qualify as giving rise to some form of special "need" or demand. Sir Crispin further drew attention to the fact that in terms of section 10(2) the licensing authority was disabled from granting or renewing a taxi licence unless they were satisfied that the vehicle to which the licence related was "suitable in type, size and design for use as a taxi ... ". He then referred to section 20 of the Act in relation to the making of regulations and, in particular, to section 20(2A) which had been introduced by section 39(3) of the Disability Discrimination Act 1995 and which is in the following terms:"(2A) Without prejudice to the generality of subsections (1) and (2) above, regulations under those subsections may make provision as appears to the Secretary of State to be necessary or expedient in relation to the carrying in taxis of disabled persons ... and such provision may in particular prescribe
(a) requirements as to the carriage of wheelchairs, guide dogs, hearing
dogs and other categories of dogs;
(b) a date from which any such provision is to apply and the extent to
which it is to apply; and
(c) the circumstances in which an exemption from such provision may be
granted in respect of any taxi or taxi driver ... ".
Sir Crispin submitted that this indicated that as recently as 1995 Parliament viewed the issue of access to taxis by disabled persons as being one for resolution by regulations anent design rather than by reference to the "significant demand" provisions of section 10(3) of the Act.
[9] Mr. Skinner, advocate, for the applicant, submitted that the point was a very short one indeed. The overall population included the disabled population and if there was significant unmet demand from the latter, then it could not be said that there was no significant unmet demand in the area as a whole. Section 20 of the Act, said Mr. Skinner, was dealing with the quite different matter of regulation. The sheriff had accordingly reached the correct conclusion on the matter and should be upheld. [10] In my opinion, while Mr. Skinner's approach and that of the sheriff has an obvious attraction, it is in the end Sir Crispin who has the right of the argument. I am satisfied, for my part, that the purpose of section 10(3) of the Act was in general to enable a licensing authority to restrict the number of licences to what was necessary to meet the "demand" in their area. I do not, myself, consider that this necessarily entails the formulation of what must be described as a "policy". But it does clearly require some form of assessment and, for the reasons given by Sir Crispin, that is something which can only meaningfully be carried out by reference to the overall demand in the area. In this connection, I am, of course, taking as well founded Sir Crispin's submission, under reference to Maud v. Castlepoint Borough Council cit. sup., that a licence could not be restricted under section 20(1) of the Act or otherwise to serving only the needs of the disabled community. Mr. Skinner did not seek to argue the contrary. I am further of opinion that the manner in which Parliament has addressed the issue of access to taxis by disabled persons in what is now section 20(2A) of the Act, while by no means conclusive, at least goes some way towards supporting the construction of section 10(3) of the Act for which Sir Crispin contends. [11] Having said all that, I wish to make it crystal clear that in expressing the foregoing views I am not to be taken as saying that the needs of the disabled in this context are other than highly significant when that word is taken outwith its statutory context. In my opinion, however, this is exactly the sort of consideration which should be addressed by the licensing authority when it comes to exercise its general discretion under the opening words of section 10(3) of the Act. The fact that there is "no significant demand ... which is unmet" within the restricted meaning of that phrase at the end of section 10(3) does not mean that an application is automatically refused. On the contrary, as I have already said, and as is made clear in Douglas v. City of Glasgow District Council cit. sup., it is still necessary for the licensing authority to consider whether the application should be granted or refused. In doing that they are, no doubt, in a sense considering whether to make an exception to their general policy on numbers. More accurately, however, the consideration should be whether there are circumstances which require the case to be looked independently of that policy. In Douglas it was held that the personal circumstances of the applicant should have been taken into account in the exercise of the general discretion to which I have referred. In exactly the same way, in my opinion, the special needs of the disabled should in this case be taken into account in the course of exercising that same discretion. As I have already said, I am not satisfied that the minds of those concerned have at any stage been focused on the problem in that - its proper - context. Needless to say, it is impossible for this court to know what view will be taken when that is done. [12] In all the circumstances I can see no alternative to recalling the interlocutor of the sheriff dated 8 January 2004 and sustaining the sixth plea in law for the present appellants to the effect of remitting to the sheriff with a direction that she, in turn, remit the applications back to the licensing authority for reconsideration of their decision in light of what is said above. It goes without saying that I am concerned by the delay which has already taken place. I am also concerned by the fact that, although Mr. Skinner's fall back position was that we should take the course which I have just proposed, there was no cross-appeal in relation to that matter. In this connection, I note, for the record, Sir Crispin's submission that without such a cross-appeal we were disabled from taking that course. Bearing in mind, however, that in his submissions to the sheriff Mr. Skinner did make a brief reference to the matter of general discretion and that the availability of that route as a means of dealing with the problem in hand formed a substantial part of Sir Crispin's own submissions to this court, I consider that we are not so disabled. I accordingly move your Lordships to dispose of the case in the manner which I have suggested. Davies v. Renfrewshire Council & Anor [2005] ScotCS CSIH_17 (11 February 2005)|
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Marnoch Lady Cosgrove Sir David Edward
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[2005CSIH17] XA24/04 OPINION OF LADY COSGROVE in APPEAL From the Sheriffdom of North Strathclyde at Paisley by RENFREWSHIRE COUNCIL Appellants; in the cause EDWIN DAVIES Appellant and now Respondent; against RENFREWSHIRE COUNCIL First Respondents and now Appellants; and PAISLEY AND GLASGOW AIRPORT TAXIS LIMITED Second Respondents:
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Act: Skinner; Brodies, W.S. (for Peacock Johnston, Glasgow) (Appellant and Respondent)
Alt: Sir Crispin Agnew of Lochnaw, Q.C.; Simpson & Marwick, W.S. (First Respondents and Appellants)
11 February 2005
[13] I have had the advantage of reading the opinion of your Lordship in the chair and am in complete agreement with your Lordship as to the construction of section 10(3) of the Act. I agree that "demand" for the purpose of the subsection can only be meaningfully assessed by reference to the needs of the community looked at as a whole, and that the power introduced in what is now section 20(2A) of the Act to make regulations in relation to the carrying in taxis of disabled persons supports that construction. It follows that I agree with your Lordship that the sheriff's view that the existence of unmet demand from any one segment of the community was significant is erroneous, and that the appeal to this court on the ground of her error in law must therefore succeed. [14] Counsel for the licensing authority submitted that if his submission that the sheriff had erred was accepted, the court should recall the Interlocutor of the sheriff. The effect of doing so would be to restore the decision of the authority. I agree with your Lordship in the chair that, in the particular circumstances of this case, that is not an appropriate disposal. [15] It is clear from the terms of section 10(3) that the licensing authority requires to exercise its discretion at the stage of deciding whether there is unmet demand. It is also clear that the use of the word "may" in the opening words of the subsection confers a further discretion on them, even if satisfied that there is no such unmet demand, to either grant or refuse the particular application. The sheriff records that counsel for the applicant submitted that it was not at all clear from the decision letter whether the authority were aware that they had such a discretion. I consider that, having regard to the context of the relevant passage in her judgment, it is that quite separate and general discretion afforded by the opening words of the subsection to which the sheriff is referring when she expressed the view that it was apparent from the last paragraph of the Statement of Reasons that the licensing authority were well aware that they did have a discretion and that they exercised it. I am not persuaded, however, that the passage to which the sheriff refers bears that generous interpretation. I agree with your Lordship that it appears from the terms of the decision letter that the licensing authority failed in this case to exercise that discretion and that they considered these applications only by reference to the concluding part of the subsection, that is to say by reference to whether they were satisfied that there was no significant unmet demand. It follows that the authority erred by failing to exercise their discretion and that their decision too is flawed. [16] As you Lordship has observed, there was no cross appeal on this point. However, having regard to the interests of substantial justice, I consider that it would be inappropriate for this court to restore a decision of the licensing authority that was flawed. The appeal to this court under para. 18(12) of Schedule 1 of the Act is on a point of law only and the exercise of discretion is vested in the decision-making body. I do not consider that, on the information before this court, it can be said that the authority was bound to conclude that its discretion should be exercised in favour of the applicant. While I am of the view that, in the proper exercise of the general discretion, it would be appropriate for the authority to have regard to the important matter of any unmet demand for taxis suitable for persons with disabilities, it is not possible to conclude that that would necessarily lead to a decision to grant the applications. If that were so, and consideration of other relevant circumstances not required, the practical result would be to give effect to the construction of the subsection contended for by the applicant and favoured by the sheriff. [17] I am conscious that, as this court pointed out in City of Glasgow District Council v. Doyle 1995 S.L.T. 327, it is impossible for the decision-making authority to return to the situation as it was at the time of their earlier decision. In terms of paragraph 18(9) of Schedule 1 of the Act a remit is for the purpose of "reconsideration" by the authority of its decision. In my view, this means that the body as then constituted will require to consider the matter again with a view to assessing the situation on the basis of the whole circumstances as they are found to exist at that time. The fact that the situation at June 2003 cannot be re-created may of course be prejudicial to the applicant. The authority had before them at that time a Report that concluded "There are therefore some grounds to suggest that a fairly large proportion of those with special needs feel that they are not adequately provided for at present." The situation may now have changed to the detriment of the applicant and that factor, as well as the long delay that has occurred due to no fault on his part, may well be considerations that will bear on the exercise by the authority of their general discretion. [18] In the particular and somewhat unfortunate circumstances that have arisen in this case I agree with the disposal of this case proposed by your Lordship in the chair. Davies v. Renfrewshire Council & Anor [2005] ScotCS CSIH_17 (11 February 2005)|
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Marnoch Lady Cosgrove Sir David Edward
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[2005CSIH17] XA24/04 OPINION OF TEMPORARY JUDGE SIR DAVID EDWARD in APPEAL From the Sheriffdom of North Strathclyde at Paisley by RENFREWSHIRE COUNCIL Appellants; in the cause EDWIN DAVIES Appellant and now Respondent; against RENFREWSHIRE COUNCIL First Respondents and now Appellants; and PAISLEY AND GLASGOW AIRPORT TAXIS LIMITED Second Respondents:
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Act: Skinner; Brodies, W.S. (for Peacock Johnston, Glasgow) (Appellant and Respondent)
Alt: Sir Crispin Agnew of Lochnaw, Q.C.; Simpson & Marwick, W.S. (First Respondents and Appellants)
11 February 2005
[19] The arguments presented in this case raise a point of general principle and a number of points related specifically to the circumstances of the case. I differ from your Lordship in the chair on the point of principle and I must explain in detail why I do so. However, as regards the course proposed by your Lordship for disposal of the case, I do not dissent from it since there is a majority in favour and it would at least afford the authority the opportunity to remedy what, on any view, has been a sorry saga. I therefore confine myself to the point of general principle, which concerns the interpretation of Section 10(3) of the Civic Government (Scotland) Act 1982 ("the 1982 Act"). [20] Parts I and II of the 1982 Act made new provision for exercise of their powers by various local licensing authorities. Sections 10 to 22 deal with the licensing and regulation of taxis and private hire cars. There are two types of license: the license to operate a vehicle as a taxi or private hire car, regulated by Section 10, and the license to drive or otherwise have charge of a taxi or private hire car, regulated by Section 13. [21] The license granted under Section 10 is granted in respect of a specific vehicle which must be "suitable". In effect, the vehicle must comply with regulations to be made by the Secretary of State. Under Section 20 (2A) of the 1982 Act as amended by the Disability Discrimination Act 1995, such regulations "may make such provision as appears to the Secretary of State to be necessary or expedient in relation to the carrying in taxis of disabled persons". [22] This power was exercised in 2003 to require, subject to certain exceptions and possible exemptions, the driver of a taxi to carry guide dogs for disabled passengers and to make no additional charge for doing so. At the material time for the purposes of the present case, no further regulations had been made with respect to the carrying of disabled persons in taxis. It is not in dispute that only certain types of taxis are fully suitable for the carriage of disabled persons with wheelchairs. [23] Paragraph 5 of Schedule 1 to the 1982 Act deals generally with the way in which licensing authorities are to deal with applications for licenses of various types. Section 10(3) of the Act makes specific provision with respect to taxi licenses. [24] As originally enacted, Section 10(3) read as follows:"Without prejudice to paragraph 5 of Schedule 1 to this Act, a licensing authority shall refuse an application to grant a taxi license if, in their opinion, granting it would have an adverse effect on the general availability to the public in their area of the services of taxis or the cost of providing these services".
The commentator on the text in Scottish Current Law Statutes for 1982 observed that this provision reflected an uneasy compromise between the government who supported no control over the number of licenses by the licensing authority and some members of the opposition who supported control in the interests of maintaining standards of service.
[25] Section 10(3) was amended by paragraph 23(5) of Schedule 7 to the Transport Act 1985 (a UK statute) and now provides that"the grant of a taxi license may be refused by a licensing authority for the purpose of limiting the number of taxis in respect of which licenses are granted by them if, but only if, they are satisfied that there is no significant demand for the services of taxis in their area which is unmet".
[26] The Transport Act 1985 (Section 16) also amended the relevant provision of the Town Police Clauses Act 1847, applicable in England. Interpreting the English provision, which is in all material respects that are relevant here identical to Section 10(3), Woolf, LJ, said that the policy of the Act is "to remove restraints and allow market forces to take their course in a way which did not exist before Section 16 of the Transport Act 1985 came into effect". Bingham, LJ, in the same case, referred to the Act substituting a "free market policy" so long as the authority is not satisfied that there is no unmet demand. (See R. v. Great Yarmouth Borough Council ex p. Sawyer [1989] RTR 297 at 298 and 303.)
[27] This background explains the rather tortuous phraseology of Section 10(3). The subsection applies only where the licensing authority have in mind to refuse a taxi license for the purpose of limiting the number of taxis in respect of which licenses are granted by them. The subsection does not apply if and in so far as they rely on other grounds for refusing a license. But where the subsection applies, then the licensing authority may refuse the grant of a license if, but only if, they are satisfied that there is no significant demand for the services of taxis in their area which is unmet. [28] As I interpret it, the effect of Section 10(3) is that market forces are to determine the number of licensed taxis unless the licensing authority are satisfied that there is no significant demand for the services of taxis which is unmet. Then, and only then, are the authority entitled to apply a policy limiting the number of taxis. There is no obligation to have such a policy and it appears that some licensing authorities, in England at least, do not. [29] The issue of principle in the present case is whether (A) as the Council contend, the words "no significant demand for the services of taxis in their area" relates only to what was called a 'general' demand - otherwise put, a demand on the part of the population as a whole - or (B) as Mr Davies contends and the Sheriff held, the licensing authority is bound to take account of an unmet demand for taxis suitable for the disabled. [30] For the purposes of deciding this issue of principle, it appears to me that the terms of the statute require the authority to ask themselves three questions: (1) Is there a demand? (2) Is it significant? And (3) Is it met? [31] In my opinion, demand may be 'significant' by reason of the number or proportion of those who make it (statistical or quantitative demand) or by reason of the nature or circumstances of those who make it (qualitative demand). I can find nothing in the words of the statute permitting (far less requiring) the authority to confine their consideration to statistical or quantitative demand, or to some so-called 'general' demand or demand from the population as a whole. [32] Where there is a demand for taxis suitable for disabled persons and that demand is unmet, I do not understand on what grounds it can be said that that demand cannot, as a matter of statutory construction, be regarded as 'significant demand' within the meaning of Section 10(3). [33] Whether there is a demand, whether that demand is unmet and whether that unmet demand is to be regarded as significant are matters for the licensing authority having regard to the whole circumstances. But to preclude consideration of a particular unmet demand on the grounds of the existence of a policy limiting the number of taxis is to stand the requirements of the statute on their head. The authority are entitled to apply a limiting policy (if they have one) if, and only if, they are satisfied that there is no significant unmet demand. [34] I note that Section 10(3) contains no reference to "general demand", nor does it invite, far less require, the licensing authority to have regard only to the population as a whole. But even if one were to start from the position that Parliament requires the authority to have regard to the population as a whole, I can find no statutory warrant for the proposition that, in doing so, they are not to take account of the fact that a significant proportion of the population are disabled and cannot get about unless taxis suitably adapted for their use are available. [35] Counsel for the authority canvassed a number of deleterious consequences that would follow if licensing authorities were required to have regard to the demands of "every interest group". Thus, it was suggested, there might be a demand for taxi drivers capable of speaking Urdu, a demand from a religious group who required taxis with tinted windows or some sort of barrier between male and female occupants, or a demand from people living in a particular housing estate. [36] I confess that, for myself, I find it almost indecent to discuss these largely fanciful suggestions in the same breath as the demand, recognised by Parliament, for taxis suitable for the disabled. As regards the linguistic proficiency of the taxi driver, the Act clearly distinguishes between the license for the taxi, which relates to the suitability of the vehicle, and the license for the driver. No religious group was identified that requires tinted windows or barriers between males and females, and I know of none. And if there be a housing estate which existing taxi providers are not prepared to service, but a new applicant is prepared to service, is that not what 'market forces' are about? Why, and for whose benefit, should a licensing authority be entitled to maintain a policy of limiting the number of taxis if existing licensees are not prepared to service a 'significant' demand within their area? [37] Counsel for the authority pointed out, correctly, that, if the authority were to grant a license to Mr Davies, they could not limit the use of his taxi to disabled persons. But again, if existing taxi providers are not prepared to provide taxis suitable for the disabled, and if Mr Davies is prepared to do so and will, if a license is granted, be able to compete with them on the general market as well, is that not what competition is about? [38] I suppose it could be argued (though it was not) that the interpretation I prefer could lead, logically, to the result that, so long as there exists an unmet demand for taxis for the disabled, a licensing authority could not refuse a license even for a taxi that is not suitable for the disabled. I do not believe this is so since, in that event, the refusal would not be "for the purpose of limiting the number of taxis in respect of which licences are granted by them". But even if it were so, I do not think it supports the proposition that an unmet demand for taxis suitable for the disabled cannot, as a matter of statutory construction, be held to be 'significant unmet demand' within the meaning of Section 10(3). [39] It was argued that the problem of taxis suitable for the disabled is addressed by Parliament in the Disability Discrimination Act 1995 and is therefore foreign to Section 10(3) of the 1982 Act. For my part, I cannot understand why the fact that the 1995 Act addresses the problem means that an unmet demand for such taxis cannot be regarded as 'significant unmet demand' within the meaning of Section 10(3) of the 1982 Act. [40] In any event, the purpose of the 1995 Act is progressively to eliminate, so far as the law can do so, discrimination against the disabled. The Secretary of State is empowered by Section 20(2A) of the 1982 Act, as amended by the 1995 Act, to make regulations "prescribing ... requirements as to the carriage of wheelchairs", etc. - so, for example, compelling the use of taxis that are 'wheelchair friendly'. But Parliament has recognised that this cannot not be achieved all at once, so full implementation of the requirement may be deferred [Section 20(2A)(b)] and exemptions may be granted [Section 20(2A)(c)]. [41] In my opinion, the fact that the Secretary of State may, at some time in the future, impose compulsory requirements upon taxi operators, has nothing to do with the question whether, here and now, Parliament requires licensing authorities, before refusing a license "for the purpose of limiting the number of taxis", to address their mind to the availability of taxis suitable for the disabled. The questions are distinct and the one does not exclude the other. [42] The contrary approach would lead to the result that, even if, in a particular licensing area, there were no taxis suitable for the disabled, the licensing authority could still, "for the purpose of limiting the number of taxis in respect of which licenses are granted by them", refuse to grant a license for such a taxi. Even if it be true that since 1985 we have become more conscious than we were then of the problems of the disabled, I cannot attribute such an intention to Parliament. [43] I would therefore have refused the appeal.