Hilary
Term
[2017] UKSC 4
On appeal from: [2014] EWCA Civ 1573
JUDGMENT
FirstGroup Plc (Respondent) v Paulley
(Appellant)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Clarke
Lord Sumption
Lord Reed
Lord Toulson
JUDGMENT GIVEN ON
18 January 2017
Heard on 15 June 2016
|
Appellant
Robin Allen QC
Catherine Casserley
(Instructed by
Unity Law)
|
|
Respondent
Martin Chamberlain
QC
Oliver Jones
(Instructed by
Burges Salmon LLP)
|
LORD NEUBERGER: (with whom
Lord Reed agrees)
1.
This appeal concerns the lawfulness of a bus company’s policy in
relation to the use of the space provided for wheelchair users on its buses.
The factual and procedural background
2.
At around 9.35 in the morning of 24 February 2012, Mr Doug Paulley, who
is a wheelchair user, arrived at Wetherby bus station, expecting to catch the
9.40 bus (“the Bus”) to Leeds. On arrival at Leeds he intended to catch the
train to Stalybridge to meet his parents for lunch. The Bus was operated by a
subsidiary of FirstGroup PLC (“FirstGroup”), which is the parent company of a
group of companies which operates a total of about 6,300 buses. The Bus was
equipped with a lowering platform and a wheelchair ramp. The Bus also had a
space (a “space”) for wheelchairs, which included a sign that read “Please give
up this space if needed for a wheelchair user.”
3.
When Mr Paulley started to board the Bus, the driver, Mr Britcliffe,
asked him to wait because the space was occupied by a woman with a sleeping
child in a pushchair. The space had a sign with the familiar designation of a
wheelchair sign, and in addition it had a notice (“the Notice”) saying “Please give up this space for a wheelchair user”. Mr Britcliffe
asked the woman to fold down her pushchair and move out of the space so that Mr
Paulley could occupy it in his wheelchair. She replied that her pushchair did
not fold down, and refused to move. Mr Paulley then asked whether he could fold
down his wheelchair and use an ordinary passenger seat. Mr Britcliffe refused
that request, because there was no safe way of securing the wheelchair and the
Bus had to take a rather winding route.
4.
As a result, Mr Paulley had to wait for the next bus, which left around 20
minutes later. The consequence of this was that Mr Paulley missed his train at
Leeds, and had to take a later train which arrived at Stalybridge an hour later
than he had planned.
5.
Although Mr Paulley was a frequent bus user, this was the first time that
he was unable to get on a bus because someone refused to vacate the space.
6.
Mr Paulley issued proceedings in the Leeds County Court against
FirstGroup for unlawful discrimination against him on the ground of his
disability. His claim was based on the proposition that FirstGroup had failed
to make “reasonable adjustments” to its policies contrary to section 29(2) of
the Equality Act 2010. The claim came on before Recorder Isaacs.
7.
The evidence showed that FirstGroup’s published policy about wheelchairs
and their users at the time of the incident was this:
“As part of our commitment to
providing accessible travel for wheelchair users virtually all our buses have a
dedicated area for wheelchair users; other passengers are asked to give up the
space for wheelchairs. … If the bus is full or if there is already a wheelchair
user on board unfortunately we will not be able to carry another wheelchair
user. … Wheelchairs do not have priority over buggies, but to ensure that all
our customers are treated fairly and with consideration, other customers are
asked to move to another part of the bus to allow you to board. Unfortunately,
if a fellow passenger refuses to move you will need to wait for the next bus.”
8.
By the time of the trial, the published policy had changed somewhat, and
it was in these terms:
“As part of our commitment to
providing accessible travel for wheelchair users virtually all our buses have a
dedicated wheelchair area for wheelchair users; other passengers are asked to
give up the space for wheelchairs. …
Wheelchair users have priority use
of the wheelchair space. If this is occupied with a buggy, standing passengers
or otherwise full, and there is space elsewhere on the vehicle, the driver will
ask that it is made free for a wheelchair user. Please note that the driver has
no power to compel passengers to move in this way and is reliant on the
goodwill of the passengers concerned. Unfortunately, if a fellow passenger
refuses to move you will need to wait for the next bus.”
9.
The evidence before the Recorder established that Mr Britcliffe had
followed FirstGroup’s policy, by asking the woman with the pushchair to move
from the space, but, when she refused, by taking the matter no further. Mr
Birtwhistle, FirstGroup’s UK Bus Projects Manager, told the Recorder that “in
the main” passengers complied with a request to give up the space. Mr Birtwhistle
also explained why FirstGroup had adopted the policy set out in paras 7 and 8
above. The company had carried out a review of the way it communicated with its
customers, and found that many of them thought that it was putting up too many
peremptory notices on buses. FirstGroup had concluded that it would be better
policy to use more pleasant and engaging notices which were friendlier to
customers. So far as FirstGroup’s policy about the space was concerned, Mr
Birtwhistle said that it was designed to cause the customer to think “Somebody
else needs this space. I will be reasonable. I will move away from it.” The
policy was intended to be non-confrontational and placatory.
10.
The Recorder found for Mr Paulley and awarded him £5,500 damages.
FirstGroup appealed to the Court of Appeal who allowed its appeal - [2015] 1 WLR 3384. Mr Paulley now appeals to this Court.
The legal requirements in relation to public service
vehicles
11.
Mr Paulley’s claim was based on his allegation that FirstGroup had
failed to comply with its duties under the Equality Act 2010, and it is
therefore appropriate to set out the relevant provisions of that Act. However,
before doing so, I should refer to earlier legislation applicable to public
service vehicles, as it was relied on by the Court of Appeal, and it was also
canvassed in the arguments before this Court.
12.
The Bus was a “public service vehicle” for the purposes of the Public
Passenger Vehicles Act 1981 (“the 1981 Act”), and it was therefore required to
comply with Schedule 1 to the Public Service Vehicles Accessibility Regulations
2000 (SI 2000/1970) (“the Accessibility Regulations”). Paragraph 2 of that
Schedule required the Bus to have at least one wheelchair space on the lower
deck, which had to comply with para 3 or 4. The Bus complied with para 4, which
contains detailed specifications as to the size and other characteristics of
the space, and also envisages that a folding or tip-up seat may be placed in
the space, and requires there to be a notice on or near such a seat stating
“Please give up this seat for a wheelchair user”. The Bus was also required to
carry a sign adjacent to the space which showed a representation of a person in
a wheelchair. Paragraph 3 of Schedule 2 to the Accessibility Regulations
requires there to be at least four seats designated “as priority seats for use
by disabled passengers”, and a sign on or near a priority seat “indicating that
disabled persons have priority for the use of that seat”.
13.
Section 25 of the 1981 Act also enables regulations to be made
authorising the driver of a bus or, at his request, a police constable to
remove a passenger infringing what are known as the Conduct Regulations, namely
the Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and
Passengers) Regulations 1990 (“the Conduct Regulations”) (SI 1990/1020), which
were made under these powers.
14.
Para 5(2) of the Conduct Regulations provides:
“A driver, inspector and conductor
shall take all reasonable steps to ensure that the provisions of these
Regulations relating to the conduct of passengers are complied with.”
15.
Para 6(1) of the Conduct Regulations states that no passenger shall,
inter alia:
“(b) put at risk or unreasonably
impede or cause discomfort to any person travelling on or entering or leaving
the vehicle …
(k) remain on the vehicle,
when directed to leave by the driver, inspector or conductor on the following
grounds:
(i) that his remaining
would result in the number of passengers exceeding the maximum seating capacity
or maximum standing capacity …
(ii) that he has been
causing a nuisance; or
(iii) that his condition is
such as would be likely to cause offence to a reasonable passenger …”
16.
Para 6(2) of the Conduct Regulations states that:
“… [A] passenger on a vehicle who
has with him [inter alia any bulky or cumbersome article] or any animal -
(a) if directed by the
driver, inspector or conductor to put it in a particular place on the vehicle,
shall put it where directed; and
(b) if requested to move it
from the vehicle by the driver, inspector or conductor, shall remove it.”
17.
Para 8(2) of the Conduct Regulations provides that any passenger on a
vehicle who contravenes any provision of those regulations “may be removed from
the vehicle by the driver … or, on the request of the driver, … by a police
constable.”
18.
The Conduct Regulations were amended by the Public Service Vehicles
(Conduct of Drivers, Inspectors, Conductors and Passengers) (Amendment)
Regulations 2002 (SI 2002/1974), under powers conferred by the Disability
Discrimination Act 1995, to deal with wheelchair users. Para 12 of the Conduct
Regulations as inserted by the amendments provides that:
“(2) If there is an unoccupied
wheelchair space on the vehicle, a driver and a conductor shall allow a
wheelchair user to board if -
(a) the wheelchair is of a
type or size that can be correctly and safely located in that space, and
(b) in so doing, neither
the maximum seating nor standing capacity of the vehicle would be exceeded.
(3) For the purpose of
paragraph (2), a wheelchair space is occupied if -
(a) there is a wheelchair
user in that space; or
(b) passengers or their
effects are in that space and they or their effects cannot readily and
reasonably vacate it by moving to another part of the vehicle.
(4)(e) [B]efore the vehicle is
driven … [the driver must ensure that] any wheelchair user is correctly and
safely positioned in a wheelchair space.”
In addition a bus driver has duties to help wheelchair
users to board and alight and, where appropriate, to fit wheelchair restraints.
19.
When the Conduct Regulations were amended, the Government issued written
guidance about their application. The introduction said that the Government was
“committed to comprehensive and enforceable civil rights for disabled people.
Achieving a fully accessible public transport system is a key element of that
policy”. Dealing with the space the guidance said:
“A wheelchair user must only be
carried if there is a wheelchair space available and the seating and standing
capacity of the vehicle will not be exceeded.
Because buses often carry more
seated and/or standing passengers when the wheelchair space is unoccupied the
opportunity for a wheelchair user to travel may depend on other passengers and
how full the vehicle is at the time. If there is space available and the
seating and standing capacity will not be exceeded when the space is occupied
then any passengers in the wheelchair space should be asked to move. This may
not be practical if, for example, the vehicle is nearing its capacity or
passengers with baggage or a baby buggy are using the space.”
The Equality Act 2010
20.
The 2010 Act now governs cases of discrimination on the ground of a
protected characteristic. Disability is one such characteristic. Section 6(3)
provides:
“In relation to the protected
characteristic of disability -
(a) a reference to a person
who has a particular protected characteristic is a reference to a person who
has a particular disability;
(b) a reference to persons
who share a protected characteristic is a reference to persons who have the
same disability.”
21.
It is common ground that Mr Paulley’s “particular disability” for the
purposes of section 6(3)(a) is a physical condition which requires him to use a
wheelchair. Accordingly, this case is concerned with disadvantages faced by
wheelchair users rather than people with other kinds of disability.
22.
FirstGroup is a “public service provider”. Accordingly it falls within
section 29 of the 2010 Act, which provides:
“(1) A person (a
‘service-provider’) concerned with the provision of a service to the public or
a section of the public (for payment or not) must not discriminate against a
person requiring the service by not providing the person with the service.
(2) A service-provider (A)
must not, in providing the service, discriminate against a person (B) -
(a) as to the terms on
which A provides the service to B;
(b) by terminating the
provision of the service to B;
(c) by subjecting B to any
other detriment.”
23.
In addition, under section 29(7) of the 2010 Act, as a public service
provider, FirstGroup has a duty to make “reasonable adjustments”, and by virtue
of section 20, that duty involves complying with three requirements, the first
of which is in section 20(3), which is in these terms:
“(3) The first requirement is
a requirement, where a provision, criterion or practice of A’s puts a disabled
person at a substantial disadvantage in relation to a relevant matter in
comparison with persons who are not disabled, to take such steps as it is
reasonable to have to take to avoid the disadvantage.”
According to section 21(1), the word “substantial” in
subsection 20(3) means “more than minor or trivial”.
24.
The applicable Schedule for the purposes of section 20(1) of the 2010
Act is in this case Schedule 2, paragraph 2 of which provides:
“(1) A must comply with the
first, second and third requirements.
(2) For the purposes of this
paragraph, the reference in section 20(3), (4) or (5) to a disabled person is
to disabled persons generally.”
25.
Again, it is common ground that paragraph 2(2) of Schedule 2 is, on the
facts of this case, concerned with wheelchair users generally, rather than any
wider class of disabled persons.
26.
Section 21 provides:
“(1) A failure to comply with
the first, second or third requirement is a failure to comply with a duty to
make reasonable adjustments.
(2) A discriminates against
a disabled person if A fails to comply with that duty in relation to that
person.
(3) A provision of an
applicable Schedule which imposes a duty to comply with the first, second or
third requirement applies only for the purpose of establishing whether A has
contravened this Act by virtue of subsection (2); a failure to comply is,
accordingly, not actionable by virtue of another provision of this Act or
otherwise.”
27.
When considering whether a proposed adjustment to a provision, criterion
or practice (“PCP”) is reasonable in any particular case, the Code of Practice
on Services, Public Functions and Associations issued by the
Equality and Human Rights Commission states at para 7.30 that, “without
intending to be exhaustive, … some of the factors which might be taken into
account” include:
“– whether
taking any particular steps would be effective in overcoming the substantial
disadvantage that disabled people face in accessing the services in question;
–
the extent to which it is practicable for the service provider to
take the steps;
–
the financial and other costs of making the adjustment;
–
the extent of any disruption which taking the steps would cause;
–
the extent of the service provider’s financial and other
resources;
–
the amount of any resources already spent on making adjustments;
and
–
the availability of financial or other assistance.”
The judgments below
28.
The Recorder considered that there was no difference of substance
between FirstGroup’s policy at the time of the incident and its policy at the
time of the hearing. (I am not sure that I agree, but the contrary was not
argued, and it is not an issue which needs to be resolved on this appeal. In so
far as it is relevant, this judgment is directed to the current policy, ie as
set out in para 8 above). He found that this policy was a PCP, which he
described as a “policy … of ‘first come first served’, … whereby a
non-wheelchair user occupying the space on the bus would be requested to move
but if the request was refused nothing more would be done”.
29.
The Recorder also found that this PCP was a policy which placed Mr
Paulley and other wheelchair users at a substantial disadvantage by comparison
with non-disabled bus passengers. Crucially for present purposes, the Recorder
went on to hold that there were reasonable adjustments that FirstGroup could
have made to the PCP which would have eliminated that disadvantage. Those
reasonable steps were, at least as I read his judgment, (i) an alteration to
the Notice which would positively require a non-disabled passenger occupying a
space to move from it if a wheelchair user needed it, coupled with (ii) an
enforcement policy that would require non-disabled passengers to leave the bus
if they failed to comply with that requirement. In this connection, it is
common ground that FirstGroup’s conditions of carriage do not give a driver
power to require, let alone to force (as opposed to request) a non-wheelchair
user to move out of a space needed by a wheelchair user, or to leave the bus if
she refuses to do so.
30.
More particularly, the Recorder said that the contention “that the
system of priority given to wheelchair users should be enforced as a matter not
of request” to any non-wheelchair user (to use the inelegant but convenient
term), “but of requirement” was in his view “a reasonable one”, because:
“It could be incorporated into
[FirstGroup’s] conditions of carriage so that any non-disabled non-wheelchair
using passenger could be obliged to leave the space if requested to do so
because a wheelchair user needed to use it; just as there are conditions of
carriage which forbid smoking, making a nuisance or other ‘anti- social’
behaviour on pain of being asked to leave the bus then a refusal to accede to a
requirement to vacate the space could have similar consequences. In my view
once the system had been advertised and in place there would be unlikely to be
caused any disruption or confrontation as all passengers would know where they
were. Although such a policy might inconvenience a mother with a buggy that, I
am afraid is a consequence of the protection that Parliament has chosen to give
to disabled wheelchair users and not to non-disabled mothers with buggies. I
agree with the claimant that the [Conduct] Regulations do not really assist the
court in determining whether the proposed adjustment suggested by the claimant
is reasonable or not.” (para 21)
31.
FirstGroup’s appeal to the Court of Appeal was due to be heard with
another appeal in a case heard in the Middlesborough County Court involving
virtually identical facts, Black v Arriva North East Ltd,
where His Honour Judge Bowers had found an identical policy did not involve
unlawful discrimination under the 2010 Act - see [2013] EqLR 558. However, that
appeal was withdrawn.
32.
Although FirstGroup’s appeal in this case was unanimously allowed, in
one respect the reasons given by Lewison LJ (who gave the leading judgment)
differed from those of Arden and Underhill LJJ. While Underhill and Arden LJJ
considered that the PCP put Mr Paulley and other wheelchair users “at a
substantial disadvantage … in comparison with persons who were not [so]
disabled”, Lewison LJ was not convinced that this was so - see paras 62-65
(Underhill LJ), 72-73 (Arden LJ), and paras 35-39 (Lewison LJ). The majority
view of the Court of Appeal is not challenged by FirstGroup in this Court
(rightly, as I am currently inclined to think).
33.
All three members of the Court of Appeal considered that the lawfulness
of FirstGroup’s policy should be assessed on the basis that it had a PCP which
they formulated in slightly different terms from the Recorder, although they
accepted that this difference did not affect the outcome - see per Lewison LJ
at para 34. They said that the proper approach started by accepting that
FirstGroup had a PCP which involved “operating its buses on a
‘first come first served basis’” and then asking “whether the modification to
that PCP, namely to request but not to require non-wheelchair users to vacate
the space, and if necessary the bus, when a wheelchair user wants to use the
space, is an adjustment that went far enough to comply with the duty to make
reasonable adjustments”. There is no challenge in this Court to that
proposition (again, rightly in my view).
34.
The Court of Appeal decided that it was not reasonable to hold, as the
Recorder had done, that FirstGroup should adjust its PCP so that its drivers
required, rather than requested, non-wheelchair users to vacate a space when it
was needed by a person in a wheelchair, and then positively to enforce that
requirement, with the ultimate sanction being removal from the bus. The Court
of Appeal considered that the adjustment which the Recorder upheld would be
both unfair and impractical because:
i)
(a) It would be unreasonable for the adjustment to extend to all
non-wheelchair users including those whose refusal to vacate the space was
reasonable, as such an adjustment could unfairly affect other passengers (para
55), and
(b) If the adjustment
was limited to non-wheelchair users who unreasonably refused to vacate the
space, it would be impracticable as it would require the driver to decide
whether a passenger was being unreasonable (paras 48 and 52-53), and, in any
event,
ii)
It would not be reasonable to expect a driver to try and enforce the
proposed amended policy by seeking physically to remove such a person from the
space or the bus, or by halting the bus until that person vacated the space or
the police arrived (paras 49-50).
In addition, the Court of Appeal doubted that the
proposed adjustment to the PCP could be enforced through the police, because a
person who disobeyed it would not be guilty of criminal activity - unlike a
person who was in breach of the Conduct Regulations (paras 49-50 and 67).
35.
The Court of Appeal also rejected the notion that the Notice in the
space or the driver’s request could have been more prescriptive. Lewison LJ
based this view on the grounds that the Recorder “had accepted
Mr Birtwhistle’s evidence that FirstGroup’s research had shown that the company
achieved better results with more customer-friendly signage and that negative
prescriptive signage produced a worse outcome; yet he did not consider that
evidence in his assessment of the effectiveness of the adjusted PCP that he
endorsed” (para 51).
36.
Underhill LJ addressed this issue more fully at para 68. He said that he
would:
“hope and expect
that, other things being equal, a driver whose first request to a
non-wheelchair user to vacate the wheelchair space was refused would not simply
shrug his or her shoulders and go back to the cab, and that there would
normally be some attempt at further persuasion or pressure (possibly even
including a threat not to proceed with the journey until the space is cleared -
though this risks seriously inconveniencing other passengers).”
However, he considered that:
“The circumstances in which such a
refusal is encountered are liable to vary enormously. In most cases further
attempts at persuasion or pressure would be appropriate, but in some they might
not be: as Lewison LJ has illustrated, there will be cases where it would be
obviously unreasonable to expect the person occupying the space to vacate it,
and there would be others where the question of whose need was the greater was
at least debatable and where it would not be fair to expect the driver to have
to make a decision. Also, the temperaments and experience of different drivers
are bound to vary: some would handle such a situation well, but others might
find it difficult to cope with. It would be unrealistic for a company to have a
policy which prescribed calibrated responses covering the whole range of
possible situations.”
He added that he “need not express a final view about any
such half-way house, since this was not the basis on which the judge decided
the case”.
37.
Arden LJ also discussed this issue, saying at para 80:
“I consider that
the bus company must provide training for bus drivers and devise strategies
that bus drivers can lawfully adopt to persuade people to clear the wheelchair
space when needed by a wheelchair user. Bus drivers have to use their powers of
persuasion with passengers who can move voluntarily. The driver may even
decline for a short while to drive on until someone moves out of the wheelchair
space. There is no risk of liability to such passengers in requesting them
(firmly) to move, if they can, because if they cannot safely do so, they will
not do so. The bus company should also have an awareness campaign and put up
notices designed to make other passengers more aware of the needs of wheelchair
users.”
However, she said in the following paragraph:
“These steps … are
not part of Mr Paulley’s case: he has limited his case to requiring the bus
company to require people to get off the bus when necessary so that a wheelchair
user can get on.”
38.
In reaching their conclusion, the Court of Appeal considered that the
Recorder was wrong to ignore the Conduct Regulations. In para 49 of his
judgment, in a passage with which Underhill and Arden LJJ
agreed, Lewison LJ pointed out that each of the anti-social activities
identified by the Recorder in the passage quoted in para 12 above “is expressly
prohibited by the Conduct Regulations, and the police can be called in aid of
the driver under regulation 8(2)”. Accordingly, he continued, “[i]n these cases
the driver can truthfully say that the passenger is breaking the law”. Earlier
in his judgment at para 21, Lewison LJ said that he would “infer that the Government
took the view” that the guidance which accompanied the amended para 12 of the
Conduct Regulations (and set out in para 19 above) “struck the right balance
between the interests of wheelchair users on the one hand, and other passengers
on the other”, and that “FirstGroup’s policy follows this Government guidance”.
He fairly added that “this guidance pre-dated the introduction of the duty to
make reasonable adjustments which is now contained in the Equality Act 2010”,
although as he said “the guidance has not been withdrawn or amended”.
What did the recorder decide?
39.
As Lewison LJ said in para 30 of his judgment, it follows from the
provisions of 2010 Act set out above that if, on the morning of 24 February
2012, FirstGroup failed to comply with its duty to make reasonable adjustments
to its PCP of “first come first served”, in order to avoid the substantial
disadvantage which Mr Paulley suffered as a disabled person, it will have
unlawfully discriminated against him. As explained above, the Court of Appeal
concentrated on the contention that the adjustment which it was said that
FirstGroup had wrongly failed to make to its PCP was “to have a policy of
requir[ing] and if necessary enforc[ing]” the requirement (as Mr Allen QC
succinctly put it in his argument on behalf of Mr Paulley), as opposed to
merely requesting, that non-wheelchair users vacate the space if the space was
needed by a wheelchair user. This proposal involves two departures from
FirstGroup’s PCP: first it involves the driver requiring, rather than
requesting, a non-wheelchair user to vacate a space; secondly, in the event of
non-compliance, it involves the driver, rather than doing nothing, enforcing
the requirement by ejecting the non-wheelchair user (or getting him or her
ejected) from the space, and, if necessary, from the bus.
40.
Before discussing the issues of substance, it is necessary to address
the question of what the Recorder actually decided. It appears that Lady Hale
and Lord Kerr do not read the Recorder’s judgment as effectively requiring a
policy that could lead to a non-wheelchair user being ordered off the bus.
However, for my part, I accept the submission of Mr Chamberlain QC for
FirstGroup that the Recorder did hold that such a policy was mandated. I say
that for a number of reasons.
41.
First, the Recorder appears to me to have made it clear when he said
that “a non-disabled passenger … would either have to vacate the space by, for
example, folding a buggy and sitting elsewhere, or by leaving the bus and
taking the next bus available” in the passage quoted in para 79 of Lord
Toulson’s judgment. In addition, the Recorder said that “the real adjustment
alleged on behalf of the claimant” was that there should be “a clear
practice/policy which not only paid lip service to the giving of priority but
actually enforced such priority”, so that non-wheelchair users would realise
that “if there was competition for [a] space with a wheelchair user they would
either have to vacate the space … or [leave] the bus”. Consistently with this
approach, the Recorder then considered the evidence relating to the possibility
of enforcing a requirement to vacate the space on an unwilling non-wheelchair
user who was occupying it, and concluded that “the real adjustment” which he
had identified should have been made by FirstGroup. In addition, there is his
reference to any requirement being “enforced” in the passage quoted at the
beginning of para 30 above.
42.
Secondly, in answer to a question from Lewison LJ, Mr Allen QC made it
clear to the Court of Appeal on behalf of Mr Paulley that “it was necessary to
have a policy of require and if necessary, enforce”, adding “[t]hat was our
case and that was the case that was put in cross-examination”.
43.
Thirdly, it is quite clear that the hearing before the Court of Appeal,
and the judgment of that court proceeded on the basis that the Recorder had
accepted Mr Paulley’s case, which was that, to be legally valid, any policy
should be enforceable, if necessary, by requiring a non-wheelchair user to get
off the bus. Lewison LJ said at para 41 of his judgment, “the arguments on the
appeal were limited to the question whether the judge was right to endorse the
PCP that he did. There was no Respondent’s Notice and no argument directed to
some alternative and more limited form of PCP that FirstGroup should have
adopted.” (Mr Allen QC makes a fair criticism that the two references to “PCP”
are mischaracterisations, but it is clear that Lewison LJ meant “adjustment”
rather than PCP). In particular, Lewison LJ said that Mr Paulley’s case had
involved an amendment to the PCP where “no discretion is given to the driver”.
And Underhill and Arden LJJ expressed views to the same effect - see the
passages quoted from their respective judgments at the end of paras 36 and 37
above. Further, as Mr Chamberlain QC said, the point is also apparent from
exchanges during the argument in the Court of Appeal, including that quoted in
para 42 above.
44.
Fourthly, Mr Allen QC accepted in his written case in this Court that
this is how the case proceeded in the Court of Appeal, at any rate in his
opening argument. He said that at first instance there had been “no discussion
of ‘compel[ling] all other passengers to vacate the wheelchair space
irrespective of the reason why they are in it’”, but, although he contended
that FirstGroup did not rely on “exceptional circumstances” before the
Recorder, Mr Allen nowhere disputed the notion that the Recorder concluded that
FirstGroup’s policy should include mandatory enforcement. It is also clear from
later passages in his written case that he accepted that the question of
mandatory enforcement was floated in argument before the Recorder. Indeed, in
his written case, Mr Allen made the point that FirstGroup could enforce any
policy by requiring drivers to turn off the bus a non-wheelchair user who did
not move from a space.
45.
Finally, if a bus company must have a policy which actually forces a
non-wheelchair user to vacate the space, there can be no getting away from the
fact that there will be occasions when that policy can only be complied with by
forcing someone off the bus: eg when the bus is completely full, when the
non-wheelchair user cannot stay on the bus unless she remains in the space, or
when the non-wheelchair user simply refuses to move from the space.
A policy of “require and if necessary enforce”: discussion
46.
In my judgment, it is very difficult to disagree with the reasoning of
the Court of Appeal in rejecting this contention (“the primary contention”)
advanced on behalf of Mr Paulley. First, in so far as this adjustment involved
an absolute rule (ie that any non-wheelchair user must vacate the space if it
is required by a wheelchair user), it would not be reasonable. Secondly,
whether it was an absolute rule or a qualified rule (ie that any non-wheelchair
user must vacate if it is reasonable), its implementation through the medium of
mandatory enforcement would be likely to lead to problems on some occasions.
47.
As to an absolute rule, it is true that there is nothing in the primary
or secondary legislation which supports the notion that the space allocated for
wheelchair-users is to be exclusively used by such individuals, although it is
clear that that was, in general terms at any rate, the primarily envisaged use.
It is also true that there is no absolutist legislative provision comparable to
those relating to anti-social activities as contained in the Conduct
Regulations set out in paras 15-17 above. However, it does not follow from
either point that a court could not conclude that, on appropriate facts, an
absolute rule such as that suggested by the Recorder would be requisite. As Mr Allen
QC argued, the 2010 Act accorded what Lady Hale has called an “extra right …
consistent with the obligations which the United Kingdom has now undertaken
under the United Nations Convention on the Rights of Persons with Disabilities”
- Aster Communities Ltd (formerly Housing Homes Ltd) v Akerman-Livingstone
(Equality and Human Rights Commission intervening) [2015] AC 1399, paras
25-26. Accordingly, I do not consider that, for instance, para 12(3)(b) of the
Conduct Regulations (set out in para 18 above) or the guidance set out in para
19 above provides an automatic answer to the notion that, on appropriate facts,
there should be an absolute rule.
48.
Nonetheless, once one considers the effect of an absolute rule in
relation to the use of spaces on buses, it is not difficult to conceive of
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 though the space is
needed by a wheelchair user. As Lewison LJ said (perhaps somewhat optimistically
in some cases) in para 48 of his judgment, “[a]lmost by
definition, a person who refuses to vacate the wheelchair space when asked to
do so [to accommodate a wheelchair-user] will have a reason which (at least to
them) seems to be a reasonable one”. Thus, it might be reasonable for a
person to refuse to vacate the space, if he or she was disabled and needed the
space to store disability aids, or was elderly and infirm, or was accompanying
infants, especially, for instance, if that person had an urgent hospital
appointment, or would find it physically very difficult to alight from the bus.
Or the space might be occupied by a vulnerable person who only felt safe in the
space and could not reasonably be required to leave the bus in an unfamiliar or
unsafe location. Of course, in some of these types of circumstances, it might
be possible for the non-wheelchair user to move elsewhere on the bus, but that
may be impossible in some cases, or it may only be possible if third parties,
not occupying the space, alighted from the bus, which may be unacceptably
difficult or even impossible to arrange.
49.
Turning to the possibility of a qualified rule, it is right to record
that Mr Allen accepted that, even if there was an absolute rule, there could be
exceptions to it “in cases of real emergency”. Such an approach is close to
what I have called a qualified rule, viz a rule that non-wheelchair users would
only be required to vacate a space to accommodate a wheelchair user if it would
be unreasonable for them not to do so. I have some doubts whether it would be
fair to impose on bus drivers the burden of deciding on the relative needs of a
wheelchair user and a non-wheelchair user in circumstances when the decision
may result in his requiring the non-wheelchair user to vacate the bus. However,
it is unnecessary to decide that point in the light of what I say in the next
three paragraphs.
50.
Whether the policy of requiring non-wheelchair users to vacate the
space, and, if necessary, the bus, is absolute or qualified, it seems to me to
be a fair objection that it would often prove difficult (or worse) when it
comes to enforcement. As Mr Chamberlain QC put it, “it would be likely to cause
confrontation with other passengers and delay”. This is particularly relevant
given the need to take into account practicability and disruption under para
7.30 of the Code of Practice (para 27 above).
51.
As I have already mentioned, a non-wheelchair user who refused to vacate
the space, whether requested or required to do so, would often (indeed, I
think, would normally) consider that he or she was entitled to refuse, and
would often have arguably good, or at least understandable, reasons for the
refusal. Further, if the bus was full, enforcement of the request would require
someone to get off the bus. It would be bad enough if that involved the
practically fraught requirement that the non-wheelchair user who was occupying
the space get off the bus; but in some cases, the driver might have to consider
whether it would be more appropriate to require one or more third parties to
get off, so that, because of her needs, the non-wheelchair user could take
their place. Accordingly, any enforcement by a driver of the policy proposed by
the primary contention would, possibly frequently, be likely to involve
confrontation at best and violence at worst.
52.
Further, it is by no means clear that there is any statutory obligation
on a passenger to comply with a policy relating to use of the space. This is in
marked contrast with the situations dealt with in paras 5 and 6 of the Conduct
Regulations (see paras 15 and 16 above), which impose a duty on a passenger, as
well as on the operator and the driver, in relation to what the Recorder
accurately described as anti-social behaviour on the part of the passenger. Further,
in para 8, those Regulations provide for enforcement by the driver, and where
appropriate by the police (see para 17 above). I note what Lady Hale and Lord
Kerr say about para 6(1)(b) of the Conduct Regulations. I do not see how it
could on any view be relied on if a non-wheelchair user was required to get off
the bus: reading paras 6(1)(b) and 12(3)(b) together, the most that a driver
can require of such a person is that she move elsewhere in the bus. Quite apart
from this, I am by no means convinced that a non-wheelchair user who
unreasonably failed to comply with a request to move from the space would fall
foul of para 6(1)(b). Para 12 imposes duties on a driver, not on a passenger,
whereas para 6 is concerned with the behaviour of passengers. And para 6(1)(b)
has a requirement of reasonableness, and, as mentioned in para 48 above, most
non-wheelchair users who refuse to vacate a space will believe that they are
being reasonable. And, in any event, even if para 6(1)(b) did apply, it would
not answer the points made in paras 50-51 above.
53.
The less aggressive policy of stopping the bus until the non-wheelchair
user vacates the space is, in my view, appropriate, provided that it is not
required to be mandatory. Again, I find it impossible to accept that a policy
would not be held to be reasonable unless it required a driver to stop the bus
until a non-wheelchair user vacated a space. It would be plainly unfair on the
other passengers, particularly in a full bus or in a bus which was connecting
with another service (eg a train or another bus), if the driver had to wait for
a long time. Indeed, it is not fanciful to think that such a policy could lead
to violence. As Buxton LJ said in Roads v Central Trains Ltd (2004) 104 Con LR 62, para 42, “[s]teps might be unreasonable for a [service provider] to
take if they unreasonably impact on third parties”. Again, I draw support from para
7.30 of the Code of Practice.
54.
It is true that stopping the bus until a passenger ceased any
anti-social behaviour was, on the evidence of Mr Britcliffe, a course which a
driver occasionally adopted where a passenger persisted in a breach of para 6
of the Conduct Regulations. But it does not follow that it would therefore be
reasonable to expect a driver to take the same course in every case where a
non-wheelchair user refuses to vacate a space needed by a wheelchair user, and
may have to leave the bus if he does vacate the space. In a case involving
anti-social behaviour, there would rarely if ever be a need for a difficult
decision about competing needs, and the nature of any confrontation would be
likely to be very different from that in a case involving competing claims to
occupy the space. Mr Britcliffe made the point in his evidence when he said
that “there’s a lot of difference between a kebab and a new-born baby, I’m
afraid”. Further, subject to the possible argument as to the applicability of
para 6(1)(b) of the Conduct Regulations, in a case involving anti-social
behaviour, the police could be called under para 8 of the Conduct Regulations,
whereas there is no such provision applicable to a case where a non-wheelchair
user refuses to vacate a space required by a wheelchair-user.
A policy of “require and pressurise”: introductory
55.
Rejection of Mr Paulley’s primary contention that FirstGroup should have
enforced a more prescriptive policy, requiring, rather than requesting, a
non-wheelchair user to vacate the space when it was required by a wheelchair
user and enforcing that requirement, does not mean that it should not have had
a more prescriptive policy than it actually had, so far as any notice and
instructions from the driver are concerned. Mr Paulley’s alternative contention
(“the alternative contention”) is that, even if one rejects his primary
contention, FirstGroup should still have adjusted its PCP so that it expressed
itself more prescriptively in writing through the Notice and/or orally through
the driver.
56.
Thus, on behalf of Mr Paulley it is contended that the Notice should have
positively required anyone who was a non-wheelchair user occupying the space to
give it up to a wheelchair user, and that it should have stated that the
obligation to vacate would be enforced. It is also contended that Mr
Britcliffe, the driver of the Bus, should have told the woman occupying the space
that she had to vacate it now that Mr Paulley required it, and that Mr
Britcliffe should have refused to drive on, at least for a period, if she did
not comply. It is further contended that there was no good reason why
FirstGroup could not have adopted such a policy with regard to its notices and
its instructions to its drivers. The fact that such written and oral
requirements would not be enforced by drivers or the police does not, it is
argued, alter the fact that if such stipulations were expressed as
requirements, rather than as requests, it is substantially more likely that any
non-wheelchair user would vacate the space if it was needed by a wheelchair
user.
A policy of “require and pressurise”: a procedural problem
57.
Although they discussed Mr Paulley’s arguments on this point in the
passages cited in para 35-37 above, the Court of Appeal took the view that it
was not open to Mr Paulley to advance the alternative contention, and in any
event that he was not doing so - see paras 42-45 above in that connection. They
said that the only adjustment with which this case was concerned was that
identified in paras 11 and 14 above, namely what I have called the principal
contention, viz that, rather than simply requesting, FirstGroup should have
required, and enforced the requirement, that persons not in wheelchairs vacate
the space when it was needed by a person in a wheelchair.
58.
However, the position appears to have been rather different at first
instance. Mr Paulley’s pleaded case and his counsel’s skeleton argument
advanced “a number of potential reasonable adjustments”, which FirstGroup
should have made to its PCP, and they were advanced both on alternative and on
cumulative bases. Those alleged adjustments included the primary contention (ie
forcing a recalcitrant non-wheelchair user to leave the bus), but they also
included a number of alternative contentions including (i) a more peremptory
Notice, (ii) the driver insisting that the pushchair was folded and (iii) the
driver refusing to move on until the space was vacated (as well as other
suggestions). The Recorder referred to the various suggested adjustments in his
well-constructed and clear judgment, but, as explained in para 42 above
described “the real adjustment alleged on behalf of the claimant” as requiring
and enforcing - ie Mr Paulley’s primary case - which he went on to accept.
59.
In these circumstances, there are two possible problems with this Court
considering Mr Paulley’s alternative contention. First, it seems quite clear
that the argument and judgments in the Court of Appeal proceeded on the basis
that it was not part of Mr Paulley’s case, as seems to have been accepted on
his behalf. On the other hand, the case was advanced much more broadly before the
Recorder, because, as I have explained, a number of possible adjustments were
put forward on the basis that they were alternatives or cumulative.
Nonetheless, because of the position adopted on behalf of Mr Paulley in the
Court of Appeal, it can be said to be rather unsatisfactory for this Court to
consider whether FirstGroup should have made an adjustment to its PCP which was
less extreme than that found by the Recorder.
60.
The second problem arises from the fact that, in order for Mr Paulley to
succeed in his claim, he must not only establish that FirstGroup should have
made an adjustment to its PCP, but also that, had that adjustment been made,
there is at least a real prospect that it would have made a difference. (It is
right to say that decisions of the Employment Appeal Tribunal express the “real
prospect” test slightly differently (compare Lancaster v TBWA
Manchester UKEAT/0460/10/DA, [2011] UKEAT 0460_10_1702 , para 46 and Leeds Teaching Hospital NHS
v Foster UKEAT/0552/10, [2011] UKEAT 0552_10_1406, para 17). However, the precise formulation of the
test is not relevant for present purposes. The essential point is that there is
no finding by the Recorder that, if FirstGroup had phrased the Notice more
peremptorily and/or required its drivers to be more forceful, this requirement
would have been satisfied, given that there would have been no question of
actual enforcement. In particular, as Lord Toulson points out in para 85 below,
there has been no formal appeal and no written or oral argument against the
finding that the woman occupying the space refused to move after saying that
her pushchair did not fold down. There is therefore no satisfactory basis upon
which this Court can, in fairness to FirstGroup, conclude that there would have
been a real prospect that such an adjustment to its PCP would have resulted in
Mr Paulley not being placed in the disadvantage that he was.
61.
In my judgment, the solution which enables this Court both to be
procedurally fair to the parties and to provide as much guidance as possible in
this important field, is to decide whether the alternative contention should,
on the evidence given to the Recorder and findings made by him, succeed but, in
the event of our so deciding not to award Mr Paulley any damages. The evidence
and arguments in relation to the alternative contention were advanced before
the Recorder, and, by accepting Mr Paulley’s more extreme primary contention,
it is very likely that he must or would have decided to reject FirstGroup’s
arguments against the alternative. Although the alternative contention was not
advanced in the Court of Appeal, we have the benefit of some valuable thoughts
on it from Underhill and Arden LJJ. Accordingly, the fact that a case based on
the alternative contention was not run in the Court of Appeal should not be
fatal to Mr Paulley’s ability to run it before this Court. On the other hand,
to award Mr Paulley any damages in the event of this Court accepting the
alternative contention would be unwarranted as the Recorder made no finding as
to whether he would have been disadvantaged had the PCP been adjusted
accordingly. (The first instance finding that Mr Paulley was disadvantaged was
based on the Recorder’s view as to what FirstGroup’s policy should have been,
which, for the reasons which I have attempted to give, was too prescriptive.)
It is true that this approach would make any finding as to the alternative
contention somewhat hypothetical, and indeed arguably obiter, but that should
not, in my opinion, stand in the way of our addressing it.
A policy of “require and pressurise”: discussion
62.
Turning then to the substance of Mr Paulley’s alternative contention, it
has two components. The first is that the Notice should have been more strongly
expressed and that it should have stated that the obligation to vacate the
space, if needed by a wheelchair user, would be enforced. The second component
is that FirstGroup’s bus drivers should have been required to do more than
simply ask a non-wheelchair user occupying the space to vacate if it was needed
by a wheelchair user, in particular they should positively have expressed
themselves as requiring the non-wheelchair user to vacate the space and/or they
should have refused to drive on until she did so.
63.
As mentioned above, the space in the Bus contained a wheelchair sign, as
specifically required by the Accessibility Regulations, and it also contained
the Notice when no such notice was specifically required by those (or any
other) Regulations (see paras 3 and 12 above). I do not consider that
FirstGroup can be criticised for not expressing the Notice in more peremptory
terms. In disagreement with the Recorder, it seems to me that, albeit politely,
the Notice did require, rather than merely request, a non-wheelchair user to
vacate the space if it was needed by a wheelchair user. Without the word
“Please” it was a requirement, and the addition of the word “Please” at best
makes it more polite and at worst softens the requirement. Secondly, there is
no reason to doubt the evidence of Mr Birtwhistle, FirstGroup’s manager, who
said that the company had been advised that “directive” notices were a less
effective means of communication with the public than more “customer friendly”
and “non-confrontational” notices. (It is right to mention that there was
evidence that some other bus companies used more peremptory notices, but there
was no evidence to suggest that they were more effective). Thirdly, while I
would not endorse it as a principle applicable in all cases, Underhill LJ’s
statement at para 68 of his judgment that “[l]egal liability ought not to
depend on whether an employer has chosen to use specially emphatic language in
expressing his policy” has real force in relation to criticisms of the way the
Notice was expressed. If finding a more peremptory, persuasive or firmly worded
notice in another company’s buses was enough to undermine the reasonableness of
the notice in this case, it could, as a matter of logic, lead to an absurd
state of affairs - the fact that another bus company used more aggressive
language, a larger sign, bolder print, or more exclamation marks could
presumably all be relied on. And it is worth remembering that we are concerned
with the question whether FirstGroup’s PCP makes “reasonable adjustments”, and,
as is made clear by the Code of Practice, that involves taking practicality
into account.
64.
The Recorder also thought that the Notice should have made it clear that
the priority of wheelchair users over the space “would be enforced”. While that
view has its attractions, I am ultimately not convinced by it. First, having
rejected Mr Paulley’s primary case (unlike the Recorder), I am unenthusiastic
about the notion of a court requiring a party to put up a notice containing a
statement which would not be true - and it would not be true once one rejects
Mr Paulley’s primary case. Secondly, as I have already indicated, in the light
of Mr Birtwhistle’s evidence as to what constituted effective notices, and in
the absence of any evidence to the contrary, I would not be prepared to hold
that FirstGroup was in breach of its duty to make reasonable adjustments by
failing to express the Notice more aggressively. Thirdly, there is the point
made by Underhill LJ quoted at the end of para 36 above.
65.
I turn finally to the contention that FirstGroup drivers should have
been instructed to do more than simply request non-wheelchair occupiers to move
from a space when it was needed by a wheelchair user. On this aspect, it seems
to me that there is obvious force in the concerns, expressed by Underhill LJ in
the second passage quoted from his judgment in para 36 above, about the
difficulties of identifying any policy given the fact that the circumstances of
the non-wheelchair user and the character of the driver could be very different
in different cases.
66.
Nonetheless, I have concluded that it was not enough for FirstGroup to
instruct its drivers simply to request non-wheelchair users to vacate the
space, and do nothing further if the request was rejected. I accept that
allowance must be made for the fact that there will be a variety of different
circumstances in which a non-wheelchair user refuses to vacate a space which is
needed by a wheelchair user. Thus, the appropriate approach of the driver could
depend on (i) the reason for the refusal, including, in particular, the needs
of the non-wheelchair user; (ii) the surrounding circumstances, including
whether the bus is full or has vacant places, whether the bus is on time, and
the frequency of the service; and (possibly) (iii) the character of the driver.
However, in para 68 of his judgment, Underhill LJ was in my view right in
describing as “good practice”, “a policy … to encourage drivers to go as far as
they thought appropriate in the circumstances - in legal language, ‘use their
best endeavours’ - to induce the recalcitrant passenger to reconsider his or
her initial refusal”.
67.
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.
68.
Because circumstances can vary so much, and because judges should
plainly not impose a policy which is not practicable, I consider that this is
as far as any adjustment required by this Court to be made to FirstGroup’s PCP
could be expected to go (at least in the light of the evidence given at trial,
the Recorder’s findings and the arguments we have heard). It may well be, as
Underhill LJ went on to say, that, at least in many cases, “there is in reality
no very deep gulf between a policy so expressed and one, like FirstGroup’s,
which does not in terms go further than saying that the passenger should be
asked to move”. However, in my opinion, there will undoubtedly be cases where
the sort of “good practice” which he suggested, and which I have attempted to
summarise in para 67 above, could be expected to produce positive results
whereas FirstGroup’s current, more pallid, policy would not do so. When a
non-wheelchair user is unreasonably refusing to move from the space, there are
vacant places on the bus, (and the bus is ahead of schedule) a more forceful
repetition of an initial unsuccessful request in the form of a requirement
(coupled with a refusal to drive on for several minutes) may well persuade the
unreasonable non-wheelchair user to vacate the space.
69.
The very fact that, under FirstGroup’s current PCP (set out in para 8
above), 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. I also agree
with Lord Toulson that this conclusion is supported by para 12(2) and (3) of
the Conduct Regulations (set out in para 18 above), which show that those
responsible for those Regulations did not consider it unreasonable to decide
whether a non-wheelchair user could “readily and reasonably vacate” a space and
“mov[e] to another part of the vehicle”. Such a conclusion seems to me to be
consistent with what Underhill LJ “hope[d] and expect[ed]” in the first passage
quoted in para 36 above, and what Arden LJ considered that FirstGroup should do
in the passage quoted in para 37 above.
Conclusion
70.
Since preparing the first draft of this judgment, I have had the
opportunity of reading in draft the judgments of Lady Hale, Lord Kerr, Lord
Clarke, Lord Sumption and Lord Toulson. I agree with what Lord Toulson says in
his concise judgment, as to the reasons for allowing this appeal, as to the
interpretation of the Recorder’s judgment, and as to the advisability of
reconsidering the state of the law in this area.
71.
I think that Lord Kerr and I have arrived at the same view as to what
the driver should be expected to do under a policy which complies with a bus
company’s equality duty. In that connection, I would refer to the fourth and
fifth sentences of para 129 and para 133 of his judgment and paras 66 and 67
above. However, we disagree about the notice (compare his para 122 with paras
63-64 above). Lady Hale (with whom Lord Clarke also agrees) prefers to limit
any decision to saying whether FirstGroup’s PCP could have done more - see the end
of paras 101 and 108 of her judgment. As to that, I accept that we could decide
this appeal without expressing a view as to how much further FirstGroup’s PCP
should have gone - for instance, without deciding whether a requirement to move
would have to be physically enforced. However, that would, in my opinion, be
regrettable. Merely to decide that FirstGroup’s PCP fails to satisfy the
requirements of the 2010 Act would leave bus companies in a state of real
uncertainty as to their equality duties in connection with wheelchair users. It
is inevitable that any decision we reach will result in some grey areas, but it
is one of the principal functions of this Court to clarify the law, and
therefore to keep the grey areas as few and as small as possible.
72.
As to Lord Sumption’s judgment, I agree with him 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 section 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.
73.
Accordingly, I would allow this appeal to the limited extent explained
in paras 66-68 above, albeit on a point which was expressly not pursued in the
Court of Appeal.
LORD TOULSON: (with
whom Lord Reed agrees)
74.
The majority of the Court of Appeal held that the respondent bus company
applied a “provision, criterion or practice” (“PCP”), within the meaning of
section 20(3) of the Equality Act 2010, that wheelchair users could use the
wheelchair space on its buses on a “first come first served” basis, and that this
PCP put wheelchair users at a substantial disadvantage compared with able-bodied
passengers. There is no appeal against those findings. The issue is whether
there were reasonable steps which the bus company could have taken to avoid or
ameliorate the disadvantage.
75.
With effect from 1 October 2002, regulation 12(2) of the Public Service
Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers)
Regulations 1990, (SI 1990/1020) as amended by SI 2002/1724, provided that:
“If there is an unoccupied
wheelchair space on the vehicle, a driver and a conductor shall allow a
wheelchair user to board if -
(a) the wheelchair is of a
type and size that can be correctly and safely located in that wheelchair
space, and
(b) in so doing, neither
the maximum seating nor standing capacity of the vehicle would be exceeded.”
Regulation 12(3) defined a
wheelchair space as being occupied if
“(a) there is a wheelchair
user in that space; or
(b) passengers or their
effects are in that space and they or their effects cannot readily and
reasonably vacate it by moving to another part of the vehicle.”
76.
It follows from the fact that the obligation under regulation 12(2) was
imposed on drivers (and conductors), and from the wording of the regulation,
that drivers could have to decide whether a passenger who was using a
wheelchair space could readily and reasonably vacate it by moving to another
part of the vehicle, and this was obviously not considered to be an
unreasonable thing for drivers to be expected to do. It should also be noted
that a non-wheelchair user who was using a wheelchair space was not expected to
have to vacate the bus, but rather to move to another part of the vehicle if
that was readily and reasonably possible.
77.
Regulation 12(4) required the driver to ensure before the vehicle was
driven that any wheelchair was correctly and safely positioned in a wheelchair
space. There is therefore an apparent tension in the regulation, because
regulation 12(2) requires the driver to permit a wheelchair user to board if
there is an unoccupied wheelchair space, which includes a space physically
occupied by a person who could readily and reasonably move elsewhere, but for
as long as that person remains in the wheelchair space the vehicle must not be
driven. Where the space is taken by someone who could readily and reasonably
vacate it by moving to another part of the bus, the driver could properly say
to that person that he, the driver, is required by law to allow the wheelchair
user to occupy the space and that for this to happen that person must move. But
there is a possibility that he may be ignored. I would in such circumstances
interpret the obligation under regulation 12(2) as an obligation on the driver
to do as much as he practically can to enable a wheelchair user to occupy the
wheelchair space, unless it is already occupied within the meaning of
regulation 12(3), but if that task proves impossible he is not required to do
more.
78.
The Recorder accepted the claimant’s argument that the bus company could
reasonably have adopted a policy of requiring other passengers to allow the
wheelchair space to be used by a wheelchair user, even if it meant requiring
the other passenger(s) to get off the bus.
79.
It is right that I should explain why I interpret the Recorder’s
judgment in that way, since there appears to be some difference of opinion
among the members of the court on the point. After setting out the various
forms of adjustment pleaded in the claimant’s particulars of claim, the
Recorder said at para 15 that:
“the most comprehensive adjustment
alleged by the claimant was that it should be made clear to other passengers
that the wheelchair space is for wheelchair users and that they will be
required [underlined] to vacate the space if needed. Once such a practice was
put into effect with a proper system of notices, warnings and, if necessary,
advertising then the culture will have changed and no non-disabled passenger
who wished to occupy the space could be under any illusion that if there was
competition for such a space with a wheelchair user, then they would either
have to vacate the space by, for example, folding a buggy and sitting
elsewhere, or by leaving the bus and taking the next bus available.”
80.
At para 21 the Recorder said that the practice suggested by the claimant
was a reasonable one. I infer that the Recorder had in mind that the suggested
practice was intended to apply even if it meant requiring other passengers to
get off, because this was part of the claimant’s case and the Recorder
referred, at para 17, to counsel for the bus company asking rhetorically
whether we want a culture in which “a parent with a child is removed from the
bus to allow access for a wheelchair user”.
81.
However, more importantly than debating what precisely the Recorder
meant in his full and careful judgment, the case has raised points on which
those who are affected need a clear ruling from this Court. They include not
only the question whether the bus company should reasonably have adopted a
general practice of requiring other passengers to allow the wheelchair space to
be occupied by a wheelchair user, but also the question whether that should
apply even if it would mean requiring the other passenger(s) to get off the
bus. On the latter point, I agree with the Court of Appeal that the Recorder went
too far. The risk that a bus may be fully occupied when it arrives at a bus
stop is one shared by all travellers. The risk may be greater for wheelchair
users because there is likely to be only one wheelchair space, but if that
space is occupied within the meaning of regulation 12(3) of the Conduct
Regulations, I do not see that it would be reasonable to require the occupier
to leave the bus midway through their journey. By definition we are talking
about someone who is already lawfully on the bus and who cannot “readily and
reasonably vacate [the wheelchair space] by moving to another part of the bus.”
Moreover the person may also have protected characteristics, such as having a
disability requiring the use of a walking frame or being a child. As Lady Hale
has demonstrated, 90% of people with disabilities do not use wheelchairs, and
the evidence is that over half of those with disabilities have mobility
problems, no doubt of varying severity. Age is another protected
characteristic, and there would be obvious objections to a policy which
entailed telling a child that he or she was required to get off the bus, even
more so if it were at an unfamiliar or unsafe location or after dark or for a
lengthy or uncertain period of time. Illustrations of passengers with
particularly cogent reasons to object to being told that they were required to
leave the bus could readily be multiplied. If the law in this difficult and
sensitive area becomes the subject of further Parliamentary consideration (to
which I refer at the end of this judgment), there would doubtless be
considerable argument about striking a fair balance.
82.
The situation is different if the space is occupied by somebody who
could readily and reasonably vacate it but refuses to do so. There is a
preliminary objection that a bus driver cannot reasonably be expected to judge
whether a person could readily and reasonably vacate the space, but I do not
regard that as a point of substance. It is easy to make it sound complicated,
but realistically it should not be difficult to tell whether there is another
part of the bus which the person could readily and reasonably use. The drafter
of regulation 12(2) and (3) must have presupposed that this would not be too
much for a bus driver or conductor, and the bus company’s own policy, set out
by Lord Neuberger at para 8, expected the driver to be able to tell if other
space on the bus was available for a non-wheelchair user who was occupying the
wheelchair area (“If this is occupied with a buggy, standing passengers or otherwise
full, and there is space elsewhere on the vehicle, the driver will ask that it
is made free for a wheelchair user”). It is a matter of looking.
83.
I agree with Lord Neuberger that there are reasonable steps which a bus
company could take beyond simply asking the occupant to move. The driver could
make it plain that it is a requirement and I do not see that it would be
misleading or wrong for him to do so. For one thing, if the place is taken by
someone who could readily and reasonably vacate it by moving to another
available space, the object of the duty placed on the driver by regulation
12(2) and (3) is to enable the wheelchair user to occupy it and in those
circumstances it must be at least open to the bus company to stipulate that the
non-wheelchair user who could readily and reasonably vacate it should do so.
But in any event I am not aware of a legal principle which prevents a service
provider from adopting a requirement just because securing compliance with it
will or may depend on moral pressure. Unless the bus is running late, the
driver could also wait at least for a time for the passenger to comply. The
policy might not succeed in every case, and in that event the driver might have
no practical alternative to refusing to allow the wheelchair user to remain on
the bus, but the fact that the policy might not work in every case does not
make it valueless. The concept of “reasonable adjustments” under section 29(7)
of the Equality Act 2010 is intensely practical. Much human behaviour is
governed by expectation and convention rather than legal enforcement.
84.
Although this was not the primary case advanced by the claimant on this
appeal, it is within it. His lengthy printed case included, for example, the
contention (at para 163) that the Court of Appeal was wrong to reject the
submission that even a policy of request plus some attempt at further
persuasion or pressure would have been better than what happened.
85.
In the present case there was no finding of fact by the Recorder whether
the lady with the child in a buggy could reasonably and readily have vacated
the wheelchair space. Lewison LJ said in his account of the facts that the
driver asked her to move and to fold down her pushchair so that the claimant
could use the space, but that she said that her pushchair did not fold down and
refused to move. There was no appeal against that finding. Because it was not
an issue in the appeal, the court heard no argument whether Lewison LJ’s
account was correct or incorrect, but I note that it was consistent with the claimant’s
own witness statement. It would not be right in these circumstances for this Court
to substitute a contrary finding, and I do not consider that the case merits
being remitted to the judge for further consideration. It follows that the
award of damages in favour of the claimant cannot be sustained, but, like Lord
Neuberger, I would allow the appeal to the extent of holding that the bus
company ought to have adopted a policy of training its staff to make clear, in
circumstances where a wheelchair user wanted to board the bus but the
wheelchair space was occupied by somebody who could reasonably and readily move
to another part of the bus, that the person occupying it must do so.
86.
For those reasons as well as the reasons given by Lord Neuberger, I agree
with his judgment.
87.
By way of postscript, the Court of Appeal made critical comments about
the present state of the law in this area. The divisions of opinion in this Court
may be thought to reinforce the desirability of it receiving fresh legislative
consideration.
LORD SUMPTION:
88.
If a wheelchair user wishes to occupy the designated wheelchair space on
a bus, basic decency and courtesy require the non-wheelchair user occupying it
to move, unless he or she has a very good reason not to do so. But the law cannot
enforce basic decency and courtesy, save insofar as they correspond to legal
standards of behaviour. The difficulty in this case is that the Conduct
Regulations deal with the obligations of passengers at paras 5 and 6, without
imposing any obligation on them to vacate the wheelchair space when it is
required by a wheelchair user. FirstGroup cannot create such an obligation of
passengers by the terms of their published wheelchair policy. I agree with Lord
Neuberger that in those circumstances it would be wrong to expect the bus
company to rephrase the notice at the designated wheelchair space so as to
suggest that a non-wheelchair user was required to move. It would simply not be
true. The difficulty is that the same objection might be said to apply to Lord
Neuberger’s view that the driver’s polite request having been rejected, he
should rephrase it as a requirement. That would not be true either.
89.
One solution to the problem might be for FirstGroup to change their
conditions of carriage so as to require a non-wheelchair user to move to
another part of the bus if there is space, or to get off the bus if there is
not. They would then have a contractual right to enforce a requirement by the
driver to move. The difficulties about this solution are (i) that it will not
in all cases be reasonable to require the non-wheelchair user to vacate the
wheelchair space, even if there is space elsewhere on the bus; (ii) it would
not in my view be reasonable in any case to require him or her to get off the
bus if there is no space elsewhere; and (iii) a change in the conditions of
carriage which were subject to a test of reasonableness in each case would
simply give rise to argument with the more recalcitrant non-wheelchair users,
without being enforceable at the only point of time when enforcement would of
be any use to wheelchair users.
90.
I see the force of the argument that bus companies can reasonably expect
their drivers not just to ask the non-wheelchair user to move but to do their
best to persuade him or her to do so unless he has good reason to stay or it is
clear that persuasion will be unavailing. The difficulties, as it seems to me,
are (i) that if this is to be turned into a legally required policy, it is
necessary to specify what, as a minimum, a driver ought to do; and (ii) that
any alternative guidance must be in terms which are capable of practical
application and reasonably likely to be effective in a bus full of people at
the roadside. This is a sensitive area in which the circumstances may be
infinitely varied and techniques of persuasion are not susceptible to detailed
legal prescription.
91.
The ideal solution, if there is one, would be to change the law so as to
create an obligation on the part of non-wheelchair users, enforceable in the
same way as the rule against anti-social behaviour, to move unless the driver
reasonably considers that they have a sufficient reason not to do so. In the
absence of such a change, we must recognise that there are limits to what law
can achieve in amending lawful but inconsiderate behaviour. Fortunately, the
evidence suggests that the present problem rarely arises.
92.
For these reasons, I confess that I have misgivings about aspects of the
reasoning of Lord Neuberger and Lord Toulson, which would impose on drivers a
duty to “require” the non-wheelchair user to move and in some cases to stop the
bus “for a few minutes”, thereby inconveniencing every other passenger in order
to shame the non-wheelchair user into doing something that the law does not
require him to do. But this is not a case in which it would be right to
dissent. In a situation where there is no ideal solution, but only more or less
unsatisfactory ones, I think that the approach of Lord Neuberger and Lord
Toulson comes as close to giving effect to the policy of this legislation as a
court legitimately can. I therefore agree with their proposed disposition of
this difficult appeal. In particular I agree with them that once one rejects,
as I fear one must, the more abrasive policy required by the Recorder, there
are no findings which could justify an award of damages.
LADY HALE: (dissenting
in part)
93.
The ability to travel and to get about is important to all of us.
Without it we cannot get to work, do the shopping, visit family and friends or
places of entertainment, in short be part of the community. Difficulties with
transport are one of the two most common barriers to work for people with
impairments. Of the 12m disabled people in the United Kingdom, one tenth, that
is 1.2m people, are wheelchair users and more than a quarter of these are under
the age of 60 (Papworth Trust, Disability in the United Kingdom 2014, Facts
and figures). It scarcely needs stating that they face particular
difficulties in getting about and thus playing as full a part as they can in
the life of the community. Without the ability to travel they risk becoming
socially isolated and losing confidence in themselves. But their journeys need
even greater planning than do those of people who are not wheelchair users:
will I be able to get to the bus stop, will I be able to get on the bus, when
will the bus go, will I be able to get from the bus to the train station, will
I be able to get on the train, when will the train go, will I be able to get to
my destination at the other end?
94.
Time was when the law did nothing to help. But then along came the
Disability Discrimination Act 1995. This not only prohibited direct and
indirect discrimination against disabled people; it also imposed duties upon
the providers of employment, accommodation, goods and services, in certain
circumstances, to make reasonable adjustments to cater for the needs of
disabled people. The object, as has been said time and again, is to “level the
playing field”, to lower the barriers which prevent disabled people having
access to employment, accommodation, goods and services on the same terms as
non-disabled people. It is to produce equality of results rather than equality
of treatment (see, for example, MM v Secretary of State for Work and
Pensions [2013] EWCA Civ 1565; [2014] 1 WLR 1716, para 35, citing Archibald
v Fife Council [2004] UKHL 32; [2004] ICR 954, paras 47, 57, and Roads v
Central Trains Ltd (2004) 104 Con LR 62, para 30).
95.
However, the general duty to make reasonable adjustments, imposed upon
the providers of services by section 21 of the 1995 Act, did not apply to “any
service so far as it consists of the use of any means of transport” (section
19(5)(b)). Instead, Part V of the Act dealt with public transport and empowered
the Secretary of State to make regulations “for the purpose of securing that it
is possible for disabled persons - (a) to get on to and off regulated public
service vehicles in safety and without unreasonable difficulty (and, in the
case of disabled persons in wheelchairs, to do so while remaining in their wheelchairs);
and (b) to be carried in such vehicles in safety and in reasonable comfort”
(section 40(1); now replaced by the Equality Act 2010, section 174). It was
pursuant to that and related powers that the Secretary of State made the Public
Service Vehicles Accessibility Regulations 2000, which are still in force.
These impose detailed and technical requirements for the provision of access
to, and wheelchair spaces and priority seating in, buses and coaches. This was
a big advance, making public transport much more accessible than it had been
before.
96.
The Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors
and Passengers) Regulations 1990 (SI 1990/1020) were made under powers
contained in the Public Passenger Vehicles Act 1981. In 2002, they were
strengthened to impose specific duties to allow access by disabled people, and
in particular by those accompanied by guide dogs and for wheelchair users.
Thus, drivers, inspectors and conductors are prohibited from preventing a
disabled person accompanied by an assistance, guide or hearing dog being
allowed to board and travel in the vehicle with his dog, subject to there being
a suitable space available (regulation 5(7)); likewise, drivers and conductors
are required to allow a wheelchair user to board if there is an unoccupied
wheelchair space on the vehicle and to ensure that wheelchair users can gain
access into and get out of a wheelchair space (regulation 12(2), (4)); a
wheelchair space is occupied if (a) there is a wheelchair user in that space;
or (b) passengers or their effects are in that space and they or their effects
cannot readily and reasonably vacate it by moving to another part of the
vehicle (regulation 12(3)).
97.
The regulations already imposed upon drivers, inspectors and conductors
a duty to take all reasonable steps to ensure that the regulations relating to
the conduct of passengers are complied with (regulation 5(2)); and prohibited
passengers, among many other things, from putting at risk or unreasonably
impeding or causing discomfort to any person travelling on or entering or
leaving the vehicle (regulation 6(1)(b)). Any passenger who is reasonably
suspected of contravening any of the regulations is required to give his name
and address to the driver, inspector or conductor on demand (regulation 8(1));
and any passenger who actually contravenes the regulations may be removed from
the vehicle by the driver, inspector or conductor, or, at their request, by a
police constable (regulation 8(2)). Contravention of the regulations, whether by
drivers, inspectors or conductors or by passengers, is a summary offence
punishable by a fine, but it is a defence to prove a reasonable excuse for the
act or omission in question (1981 Act, sections 24(2), 25(3) and 68(1)).
98.
Parliament must have considered that the 2000 and amended 1990
Regulations were not sufficient to enable disabled passengers to enjoy the same
access to public transport as is enjoyed by non-disabled passengers, because
Parliament next passed the Disability Discrimination Act 2005. Section 5 of
that Act added a new section 21ZA to the Disability Discrimination Act 1995,
providing for the application of sections 19 to 21 of that Act in modified form
to providers of transport services. Where such a provider had a policy,
practice or procedure which made it impossible or unreasonably difficult for
disabled persons to make use of a service which he provided to other members of
the public, it was his duty “to take such steps as is reasonable in all the
circumstances of the case for him to have to take in order to change that
practice, policy or procedure so that it no longer has that effect”.
99.
The duty of service providers to make reasonable adjustments to cater
for the needs of disabled people is now contained in the Equality Act 2010. The
duty is imposed by paragraph 2(1) of Schedule 2, which requires the provider to
comply with the first, second and third requirements in section 20, as modified
by paragraph 2. Relevant in this case is the first (in section 20(3)):
“The first requirement is a
requirement, where a provision, criterion or practice of A’s puts disabled
persons generally at a substantial disadvantage in relation to a relevant
matter in comparison with persons who are not disabled, to take such steps as
it is reasonable to have to take to avoid the disadvantage.”
Failure to comply with this (or the other two
requirements) is a failure to comply with a duty to make reasonable adjustments
(section 21(1)); and A discriminates against a disabled person if A fails to
comply with that duty in relation to that person (section 21(2)). As has been
pointed out, this is a prospective duty, owed to disabled persons generally, to
take proactive steps to meet their needs, and if an individual suffers as a
result, then it is discrimination against him.
100.
Three general points can be made about the legislative framework which
is now in place. The first is that mere compliance with the earlier
regulations, both as to the provision of the wheelchair space and affording
access to it, is not necessarily enough. Parliament must have contemplated, in
passing the 2005 Act, that other adjustments to “business as usual” might be
needed in order to reduce the difficulties faced by disabled people in using
public transport services. The second is that, as the Recorder pointed out,
“there is an enormous difference between imposing a criminal sanction upon a
driver and the obligation upon a service provider not to discriminate by a
failure to take reasonable steps to adjust a present policy which is having the
effect of substantially disadvantaging a disabled person” (para 18). The third,
and most obvious, is that service providers owe positive duties towards
disabled people, including wheelchair users, which they do not owe to other
members of the travelling public, including parents travelling with small
children in baby buggies or other people travelling with bulky luggage. The
Court of Appeal, in my view, fell into the trap of assuming that the claims of
disabled travellers were no different from the claims of any other person
wishing to use the buses. They are not. Disabled people are, for very good
reasons, a special case.
101.
It is now not in dispute that the respondent had a provision, criterion
or practice which put wheelchair users at a substantial disadvantage when
compared with non-disabled passengers. This was their policy of making the
wheelchair space provided on their buses available on a “first come, first
served” basis and doing no more than request occupants to vacate the space if
it was required by a wheelchair-using passenger. At the time of the incident in
question, the policy was that wheelchair users had no priority over buggies and
this infected both the content of the notices and the approach to enforcement.
The issue agreed between the parties for the purpose of this appeal is a simple
one: “Was the Recorder correct in concluding that FirstGroup was in breach of
the 2010 Act?”
102.
The Recorder concluded that FirstGroup could reasonably be expected to
adjust its policy. It should have been made clear to passengers, and to their
drivers, that wheelchair users had priority over anyone else in the occupation
of the wheelchair space and that other passengers would be required, not merely
requested, to move out of it if a wheelchair user needed it. With a proper
system of notices, making the position plain, backed up with firm statements
from the driver, everyone would know where they stood. The culture would
change. Disruption and confrontation would be unlikely.
103.
It is obviously reasonable to expect bus operators to do more than
FirstGroup did in this case. One only has to travel on a London bus to find a
different policy in operation. The notice carried on London buses has two boxes
side by side. The left hand one is headed “Buggy users” and below this “Please
make space for wheelchair users”. Below this there is another heading:
“Priority wheelchair area” and below this, “This space is reserved for a
wheelchair when needed”. It goes on to explain how the wheelchair must be
placed and ends “Please give up this space for a wheelchair”. Alongside this is
another panel, headed “Baby buggies”. This reads “Buggies can use this area if
it is not needed by a wheelchair user. Please move out of the wheelchair
priority area if necessary. Buggies may need to be folded at busy times.” This
may not go quite as far as the Recorder contemplated, but it is clear, polite
and firm and a great improvement on the “Please give up this space for a
wheelchair” sign adopted by the respondent.
104.
Three sorts of objection have been raised to the Recorder’s conclusion.
One is that “management had undertaken a review of the way in which the company
communicated with its passengers. They had been told that they were being too
directive so the approach was changed to one which was more ‘customer
friendly’. The sign was intended to be non-confrontational” (para 7 of the
Recorder’s judgment). But that was merely the explanation given by the company
for the current sign. The evidence of Mr Birtwhistle, for the company, was that
“there was no reason why the signs which were in the form of a request could
not be worded differently so as to make it clear to all passengers that
wheelchair users not only had such priority but that that such priority would
be enforced” (para 19 of the Recorder’s judgment). So he clearly did not
consider the non-confrontational practice to be an objection. In any event, it
is usually possible to be polite as well as clear and firm. And if clarity and
firmness cannot be achieved without a more peremptory tone, then it is reasonable
to expect a more peremptory tone. The point has to be got across that other
people are required to vacate the wheelchair space if it is needed by a
wheelchair user.
105.
The second sort of objection is that there will be some circumstances in
which it is not reasonable to expect an existing occupier to vacate the
wheelchair space. This is so, although it is important to bear in mind that
non-disabled people are not entitled to be treated in the same way as disabled
people. There is no duty to make reasonable adjustments for them. There may be
circumstances in which that duty, coming as it does after the Conduct
Regulations, could go beyond what is required by regulation 12(2) and (3).
However, the adjustments to be expected for disabled people must be reasonable
ones, and there will obviously be circumstances in which it is not reasonable
to expect the space to be vacated. There is nothing in the Recorder’s judgment
to suggest that he was expecting an absolute rule of the sort that would brook
no exceptions. This may well be because this sort of objection was not raised
before him, although it featured heavily in the Court of Appeal. As already
mentioned, the Recorder drew a clear distinction between the criminal liability
of drivers under the Regulations and the provider’s duty to make reasonable
adjustments.
106.
The third sort of objection rests on the fact that the service provider
is being expected to make adjustments which will bring about change in other
people’s behaviour. Hence a great deal of argument was directed towards how
a priority policy might be enforced against recalcitrant passengers. In my view
this is something of a red herring. Most people do what they are told to do if
they are told sufficiently clearly what it is that they are required to do. The
possibility that some people will be disobedient should not deter the bus
company from making it clear what the rules are and doing its best to persuade
people to obey. There are many steps short of physically removing the person
from the bus which can be taken, including delaying the departure of the bus
until the rule is obeyed (which I have observed being highly effective against
rowdy behaviour on an underground train). I do not read the Recorder’s
references to enforcement as necessarily involving forcible ejection from the
space or the bus.
107.
In any event, it is highly arguable that to refuse, without a reasonable
excuse, to move from a wheelchair space required by a wheelchair user is to
“unreasonably impede … any person travelling on or entering or leaving the
vehicle” within the meaning of regulation 6(1)(b). It is also difficult to see
why the Recorder was wrong to say that the company could make the requirement
to leave the space a term of its conditions of carriage, in breach of which a
passenger could be required to leave the bus. This is no more unreasonable than
requiring passengers to refrain from eating messy or smelly foods or drinking
alcohol. Drivers are frequently required to make judgments of this kind and do
their best to enforce them. These points do not have to be decided for the
purpose of deciding this case, but I agree with what Lord Kerr says about them
in paras 123 to 128 of his judgment.
108.
This case is about whether there were adjustments which the company
could have made which would have enabled Mr Paulley to board this bus. There
clearly were. Furthermore, in the Recorder’s judgment “there is little doubt
that had the practice suggested by the claimant been in force on 24 February
2012 then Mr Paulley would have been able to travel rather than having to leave
the bus and wait until the next bus was due to leave the Wetherby bus station”
(para 21).
109.
In my view, therefore, the answer to the single issue agreed between the
parties (para 101 above) is “yes”: the Recorder was correct to conclude that
FirstGroup was in breach of the 2010 Act. That being so, I have difficulty in
understanding how it can possibly be just to deprive Mr Paulley of the damages
which the Recorder awarded him. A variety of adjustments were canvassed before
the Recorder and I agree with Lord Kerr (para 133) that his judgment did not
partake of the absolute quality which the Court of Appeal thought that it did.
Even if it did, it should have been open to Mr Paulley to argue that lesser
adjustments were appropriate. He did not need to put in a respondent’s notice
in order to do so. And the sole issue for this Court is not whether the
Recorder was correct in every particular, although I am inclined to think that
he was, but whether he was correct to find that FirstGroup was in breach. The
view of this Court is that FirstGroup was in breach.
110.
In agreement with Lord Kerr, therefore, I would allow the appeal and
restore the order which the Recorder made.
LORD KERR: (dissenting
in part)
111.
It is now not in dispute that FirstGroup, in making wheelchair spaces on
their buses available on a first come first served basis, applied a provision,
criterion or practice (“PCP”) which placed wheelchair users at a substantial
disadvantage. This appeal therefore centres on the question of what reasonable
adjustments were required to modify the PCP. The Recorder considered that two
types of adjustment to deal with the deficiencies in the PCP were entirely
feasible. First, the notice on the respondent’s buses could be changed to make
it clear that a non-disabled passenger was obliged to move from a wheelchair
space if it was needed by a wheelchair user. Secondly, passengers who failed to
vacate the space when asked to do so, could be asked to leave the bus. The
Court of Appeal considered that these went further than was reasonable. Lord
Neuberger and Lord Toulson agree. Unlike the Court of Appeal, however, they
consider that adjustments which can properly be described as reasonable could
be made to the respondent’s PCP. These adjustments are quite different from
those deemed by the Recorder to be reasonable.
112.
The reasons that the Court of Appeal considered that the adjustments
proposed by the Recorder went beyond what was reasonable have been set out by
Lord Neuberger in paras 34 to 39. In short summary, these are: (a) that it
would be objectionable to require people to vacate the space whose refusal to
do so was reasonable; (b) that it was impracticable to expect the driver to
decide whether a passenger was being unreasonable in refusing to move; (c) that
it was not feasible to expect a driver to remove such a person or wait for
police to arrive and, in any event, police could not enforce the adjusted
policy because someone who refused a direction to move would not have committed
a criminal offence; and (d) that a more prescriptive notice on the bus was not
realistic in light of research which suggested that better results would be
achieved by a “more customer-friendly” message.
113.
Lord Neuberger takes the view that what he describes as “an absolute
rule” of requiring a non-wheelchair user to vacate the wheelchair space and, in
the event of non-compliance, ejecting the passenger from the space must be
rejected (paras 40 and 41). He accepts that establishing an absolute rule is
not necessarily inconsistent with a wheelchair user’s rights under the Equality
Act 2010 (para 41). But he concludes that the enforcement of an absolute rule
would not be reasonable in all conceivable circumstances. So, for instance, a
person who was disabled but who did not require the use of a wheelchair might
reasonably refuse to move from the wheelchair space. Likewise, a person who
felt safe only in that space and who might otherwise be vulnerable could not
reasonably be required to leave it.
114.
In paras 43-46 Lord Neuberger has examined the possible difficulties in
enforcing even a qualified rule. He expresses doubt as to the fairness of
requiring a bus driver to assess whether an objection to vacate the wheelchair
space is reasonable. Whatever of that, however, Lord Neuberger considers that
the clinching argument is that enforcement of a rule that required a passenger
to vacate the wheelchair space on the basis of an absolute or a qualified rule
would involve unacceptable confrontation and, on that account, could not be
regarded as a reasonable adjustment to the PCP.
115.
What has been described as “an alternative case” that might be made on
behalf of the appellant (and which was, apparently, advanced before the
Recorder) is discussed by Lord Neuberger in paras 49-51. This involved the
consideration of “a number of potential reasonable adjustments”. They included
a more peremptory notice on the buses; the driver insisting that a pushchair be
folded so as to accommodate the wheelchair; and the driver refusing to continue
the journey until the space was vacated. Lord Neuberger has taken the view that
consideration of these alternative formulations was beset by two procedural
problems. The first was that the Court of Appeal had proceeded on the basis
that the appellant’s case was confined to the “absolute” argument viz that
a non-wheelchair user should be required to vacate the wheelchair space and, in
the event of non-compliance, they should be ejected from the bus. The second
procedural difficulty identified by Lord Neuberger was the absence of any
finding by the Recorder that, if one of these modified adjustments had been
made, there was a real prospect that it would have made a difference.
116.
Notwithstanding these “procedural problems”, Lord Neuberger considers
that it is open to this Court to decide whether the alternative case should
succeed but, in the event that it does, the appellant should not be awarded
damages. He has concluded that it was not enough for the respondent to instruct
its drivers to request non-wheelchair users to vacate the space and do nothing
further if that request was not acted upon (para 59). Various courses of action
that a driver might take are adumbrated by Lord Neuberger at para 60.
Reasonable adjustments
117.
What is a reasonable adjustment must be determined according to the
context in which the assessment is made. Here the context is the elimination of
discrimination against disabled people. That will require, in appropriate
circumstances, able-bodied people to accept restrictions that they may find
irksome or inconvenient. It will demand of those who police or enforce the
adjustments that they be ready to make difficult decisions and that they be
prepared to confront and require of those who may not wish to, to suppress
selfish inclinations. Moreover, difficulty in enforcement of those restrictions
does not automatically determine that they are unreasonable. There is a
distinct exhortatory dimension to be recognised in deciding whether an
adjustment to assist a disabled person to overcome the disadvantage that she or
he has in comparison to an able-bodied person is reasonable.
A more peremptory notice?
118.
On the first issue, viz whether the notice in the bus should have
been in more peremptory terms, Lewison LJ in the Court of Appeal said that the
Recorder had accepted evidence that the respondent’s “research” had shown that
the company “achieved better results with more customer-friendly signage and
that negative prescriptive signage produced a worse outcome” but that he had
failed to reflect this in his assessment of what he considered should be the
adjustment to the PCP.
119.
What the Recorder said about this evidence is to be found at para 7 of
his judgment:
“The sign on the bus relating to
the wheelchair space is couched in terms which are entirely consistent with the
‘first come first served’ policy. … Mr Birtwhistle [the project director of
FirstGroup] agreed that it was merely a request to those passengers, other than
wheelchair users, who might be using/occupying the wheelchair space to ‘give
up’ the wheelchair space ‘if needed for a wheelchair user’. Mr Birtwhistle
explained that the reason for the signs being by way of request rather than
requirement was that the management had undertaken a review of the way in which
the company communicated with its passengers. They had been told that they were
being too directive so the approach was changed to one which was more ‘customer
friendly’. The sign was intended to be non-confrontational.”
120.
Leaving aside the question whether any distinction should be drawn
between Lewison LJ’s description of this work as “research” rather than
“review” (as the judge described it) a real issue arises as to whether a more
customer friendly notice has anything to do with a reasonable adjustment under
section 29(7) of the 2010 Act. It may well be the case that customer relations
might be improved if a less confrontational sign was erected but this is not a
case about fostering good customer relations, at least not unless the better
relations would assist in eliminating the discrimination that wheelchair users
suffer in using the respondent’s buses. Lewison LJ said that negative
prescriptive signage would produce a “worse outcome” but it is not clear on
what basis this was anticipated. Is it suggested that non-disabled customers
were less likely to comply with a requirement to vacate the wheelchair space
than they would to a request to do so? Such a conclusion is certainly not
warranted by the Recorder’s account of Mr Birtwhistle’s evidence on the
subject.
121.
A person is surely more likely to vacate a space if he or she is aware
that they will be required to do so rather than if they are merely going
to be asked to move. Customers may baulk at direct instructions but they
cannot claim that they are entitled to exercise a choice in the matter. A bus
company which alerts its passengers that they will have to abide by certain
rules if they wish to travel removes the element of choice or the occasion for
discussion. This may not be conducive to the best customer relations but it
makes it clear that certain rules must be obeyed if the customer is to avail of
the company’s services. A reasonable adjustment geared to removing
discrimination against wheelchair users cannot be discounted simply because a
less rigorous policy might promote good customer relations.
122.
The question whether a notice which instructs rather than requests
passengers to vacate a wheelchair space when it is required by a wheelchair
user must be viewed solely in terms of whether this is a reasonable adjustment
to make in order to avoid the discrimination that the wheelchair user would
otherwise suffer. Viewed in that way, the answer is plain. It is an entirely
reasonable adjustment. It removes the element of choice on the part of the
passenger occupying the space. They know, and, importantly, know in advance,
that they will have to move. Some passengers may not like it but that is not
the point. Such a notice, as well as eliminating any scope for debate,
constitutes a significant statement which accords precisely with the
Government’s policy of providing comprehensive and enforceable civil rights for
disabled people and achieving a fully accessible public transport system for
them - see para 19 of Lord Neuberger’s judgment.
Refusing to move unlawful?
123.
The Court of Appeal appears to have been influenced to its decision by
the consideration that, under the Conduct Regulations (Public Service Vehicles
(Conduct of Drivers, Inspectors, Conductors and Passengers) Regulations 1990
(SI 1990/1020)), it would not be unlawful for a passenger to refuse to obey an
instruction to vacate a wheelchair space. I consider that, although passengers
are not expressly required to obey every instruction from the driver, a refusal
to leave a wheelchair space when instructed to do so in order that it be made
available for a wheelchair user would be unlawful.
124.
Regulation 12(2) requires the driver to allow a wheelchair user to board
the bus if the wheelchair space is unoccupied. Regulation 12(3) provides that
the space is deemed to be unoccupied if a passenger, who is not a wheelchair
user, occupying the space can “readily and reasonably vacate it by moving to
another part of the vehicle”. In order to comply with his duty under regulation
12(2), the driver will have to make a judgment as to whether a non-wheelchair
using passenger occupying the wheelchair space can “readily and reasonably”
move, if that person refuses to move.
125.
The first step for a driver in deciding whether to permit a wheelchair
user to board the bus is to ascertain if the wheelchair space is unoccupied.
Because of the deeming provision in regulation 12(3) it is not enough for the
driver to discover whether there is someone in that space. He must go further.
He has to decide if the person occupying the space can “readily and reasonably”
move from it. If he so concludes, his duty under regulation 12(2) is activated.
How, then, is he to comply with that duty if he does not at least direct the
passenger deemed to be able to move to do so?
126.
Quite apart from the effect of regulation 12, a passenger who is
“readily and reasonably” able to move from a wheelchair space commits an
offence under regulation 6(1)(b) if his refusal prevents a wheelchair user from
being allowed to board the bus. This regulation prohibits any passenger from
unreasonably impeding another passenger from entering a bus.
127.
The Court of Appeal was concerned that enforcing regulation 6(1)(b)
would require the driver to assess whether the person occupying the wheelchair
space was acting unreasonably in refusing to vacate it. But I question whether
this is a matter for significant apprehension. Under regulations 6 and 8 a bus
driver can be called on to assess whether a passenger is causing discomfort to
other passengers, or is causing a nuisance or is in a condition that would be
likely to cause offence to a reasonable passenger. All of these are grounds for
removal of passengers from buses and the judgment as to whether the conditions
justifying such removal must be made, in the first instance at least, by the
bus driver.
128.
Even if it were the case that to refuse to obey an instruction to move
did not amount to a criminal offence, this would not provide the inevitable
answer to the question whether it is a reasonable adjustment to a PCP that
drivers be required to instruct passengers to do so. As the Recorder observed,
this could be made expressly clear by an adjustment to the conditions of
carriage. And since it would not involve the driver making assessments which
are markedly different from those which he is already required to undertake by
virtue of regulations 6 and 8, it cannot be suggested that such an adjustment
was other than reasonable.
129.
Lewison LJ suggested that it would not be practical for a bus company to
sue every passenger who refused to vacate a wheelchair space. I, of course,
agree. Nor would it be appropriate for a driver to attempt to manhandle a
recalcitrant passenger off the bus - see para 50 of Lewison LJ’s judgment. But
these considerations do not detract from the reasonableness of an adjustment to
the PCP whereby the driver is at least entitled to say to a passenger, “you
have to move”. If the passenger persists in refusal, the driver may decide not
to proceed with the journey. This would of course inconvenience other
passengers and it might well lead to unpleasantness but these are not reasons
to condemn as unreasonable a change to the PCP which gives drivers the
responsibility of pointing out to a passenger obstinately refusing to move that
it is the policy of the bus company (and, when the adjustment to them had been
made, one of the conditions of carriage) that they must vacate the wheelchair
space.
130.
Lord Neuberger has stated (in para 46) that what he described as the
“absolute” rule required not only that the passenger be instructed to move but,
if he refused, that he be ejected. I do not read the Recorder’s judgment as
requiring that the reasonable adjustment must incorporate the need to eject a
passenger refusing to move. In para 13 of his judgment he outlined the various
adjustments which the appellant had initially put forward as reasonable
modifications that could be made to the company’s PCP. None of these suggested
that passengers who refused to move would have to be ejected. To the contrary,
one suggestion was that the driver should try to persuade the passenger to
move; another was that the driver should refuse to continue the journey until
the passenger moved from the wheelchair space. These are not consistent with a
proposal that the driver be required to eject him. At para 15 the Recorder said
that it had become apparent during the hearing that the “real adjustment” which
the appellant sought was “a clear practice/policy which not only paid lip
service to the giving of priority to the wheelchair user but actually enforced
such priority”. It has been assumed that the Recorder intended that enforcement
in this context connoted ejection but I do not consider that this is correct.
What he actually said was:
“… the most comprehensive
adjustment alleged by the claimant was that it should be made clear to other
passengers that the wheelchair space is for wheelchair users and that they will
be required to vacate the space if needed. Once such a practice was put
into effect with a proper system of notices, warnings and, if necessary,
advertising then the culture will have changed and no non-disabled passenger
who wished to occupy the space could be under any illusion that if there was a
competition for such a space with a wheelchair user, then they would either
have to vacate the space by, for example, folding a buggy and sitting
elsewhere, or by leaving the bus and taking the next bus available. The extent
to which the adoption of such a policy would also require an insistence that
pushchairs be folded or that passengers should be asked to fold their buggies before
boarding the bus or that drivers should be trained to enable them to better
persuade passengers to move from the wheelchair area would be a matter of
degree. The most effective adjustment, which would remove the disadvantage
occasioned by the competition for the wheelchair space, would require a change
in the first come, first served/request approach.” (original emphasis)
131.
I do not construe the Recorder’s statement that the able-bodied
passenger should be under no illusion that he or she would have to sit
elsewhere or leave the bus as endorsing a policy of forcible ejection in the
face of refusal to move. Ensuring that a passenger was under no illusion as to
what was expected of him or her is quite a different matter from physically
removing them from the bus against their will if they failed to meet that
expectation. Nor do I understand him to have suggested that passengers should
in every case be required to vacate the wheelchair space, regardless of whether
they were able to do so reasonably. The Recorder articulated a reasonable
adjustment designed to cover, among other circumstances, the case of a
passenger who occupied a space with what she claimed was a buggy that would not
fold. It was never suggested that there was nowhere else on the bus for the passenger
to sit. The problem was, if her claim was true, where the buggy should be
placed. The necessary inference from the Recorder’s judgment was that, if the
passenger was unable to fold the buggy and to store it somewhere away from the
wheelchair space, it was reasonable to expect her to be asked to leave the bus
in order that Mr Paulley could be allowed to board. This, I suggest, is clear
from para 15 of the Recorder’s judgment where he said that, “if there was
competition for such a space with a wheelchair user, then they would either
have to vacate the space by, for example, folding a buggy and sitting
elsewhere, or by leaving the bus and taking the next bus available.”
132.
That does no more than affirm the principle that the wheelchair space is
to be regarded as an area in which priority be given to wheelchair users. It is
entirely consonant with the overall intention and legislative purpose of the
Equality Act 2010 and the Accessibility Regulations.
Difficulty in enforcement
133.
If the reasonable adjustments required to the PCP are that (i) the
notice in the respondent’s bus should stipulate that the wheelchair space must
be vacated when a wheelchair user wishes to use it; and (ii) that the driver be
required to tell a non-disabled passenger occupying the space that he must
yield it to the wheelchair user (rather than that he be required to eject the
passenger), many of the perceived difficulties in implementing the policy fall
away. The notice would give emphasis to the policy of the company that it is
expected that able-bodied passengers must yield the space to a wheelchair user.
There is no reason to suppose that drivers making that policy explicitly clear
would not help to persuade reluctant passengers that it is pointless to refuse.
There is every difference between a passenger who says “well, your policy
allows me to refuse a request and I am refusing” and the passenger who says,
“well, I know that your policy requires me to move but I am not moving.” Even
without coercive back-up, there is every reason to conclude that the number of
passengers prepared to take the latter stance would be significantly smaller
than in the former.
134.
In any event, as I have said, difficulty in implementation should not be
the lone yardstick against which its reasonableness should be measured. The
reasonableness of the adjustments is to be judged by the contribution which
they make to redressing the imbalance between wheelchair users and able bodied
members of the public in the opportunity they have to use public transport. Of
course, if it is utterly impossible to enforce an adjustment and if it is
likely to be wholly ignored, it may be said that it is not reasonable to
introduce it. But there is no warrant for reaching such a conclusion in the
present case. The adjustment to the PCP would, at the very least, make an
important statement about the company’s commitment to ensuring equal treatment
for its wheelchair bound customers. And, for the reasons that I have given, I
consider that it would also bring about an attitudinal change on the part of
those passengers who might be inclined to refuse a request to move.
135.
Without supporting evidence, I am not prepared to accept that a
stipulation that a passenger was required to move would lead to confrontation
or delay. When members of the public congregate to use a generally available
facility, there is always the possibility that there may be disagreement about
who is entitled to what but is there any greater likelihood of discord and
confrontation because a rule is clear, as opposed to one which allows the
passenger to decide whether to accede to a request? I would certainly not take
that as a given. And, of course, there are situations that arise under the
Conduct Regulations that do require drivers to give instructions. It was
not suggested that these gave rise to widespread problems of confrontation or
delay. Even if an instruction, as opposed to a request, prompted delay, such as
where a driver might refuse to continue the journey until the refusing
passenger yielded, that would not be a basis on which the adjustment could be
condemned as unreasonable. Wheelchair users face formidable difficulties in
making use of facilities that the able-bodied can take for granted. If
inconvenience to the travelling public because of delay is the price which has
to be paid to allow those who depend on a wheelchair to make maximum use of the
transport system which is made available to all, I do not consider that this
is, in any sense, unreasonable.
Inflexible application of the adjusted policy
136.
It is important to remember that what is sought is a reasonable adjustment
to the PCP. It is not demanded that there be a wholly unyielding application of
it in every conceivable circumstance. Even before the Court of Appeal, the
appellant accepted that there would be circumstances in which it would not be
appropriate to apply the adjusted policy in its full rigour. But, just because
there should be a measure of discretion as to when the adjusted policy should
be applied, it does not follow that there should not be an adjustment. The
inevitable fact that there will be occasions when it would not be appropriate
to require a passenger to leave a wheelchair space does not require that the
correct policy should not be in place.
137.
Of course, the decision when to enforce the adjusted policy rigidly and
when to relax or modify it calls for judgment to be exercised by the bus
driver. But there is no reason to suppose that this will require exceptional
powers of discretion. It is in the nature of a bus driver’s work that he or she
will need to make decisions about how passengers should be handled or responded
to in all manner of circumstances. The fact that there will be circumstances in
which a reasonable decision may be made not to enforce a policy strictly does
not mean that the policy should not exist. Nothing in the Recorder’s judgment
suggests that he considered that the adjusted policy would have to be enforced
in an unbending fashion, whatever circumstances were encountered.
138.
I am afraid that I am unable to agree, therefore, with Lord Neuberger’s
statement in para 55 that there is no basis on which to conclude that there
would have been a real prospect that an adjustment to the respondent’s PCP
“would have resulted in Mr Paulley not being placed in the disadvantage that he
was”. On my analysis, the Recorder had, at least implicitly, accepted that
drivers would not be required to eject passengers who refused to move and he
had not ruled out the possibility of drivers deciding that, in exceptional
circumstances, the policy should not be strictly enforced. The essential
finding that he made was that what he described as “the first come first
served/request policy” required adjustment. It is an inescapable inference from
that conclusion that, if the adjustment had been made, there was at least a
real prospect that Mr Paulley would not have been prevented from travelling on
the bus. That seems to me to be an inescapable inference in any event. If the
young woman who refused to move had been told that she had to move and that the
bus company’s policy was that she must do so, how could it be said that there
was not a real prospect that she would have moved?
Was it open to the appellant to advance a “qualified” rule
in the Court of Appeal?
139.
For the reasons that I have given, I do not believe that the Recorder’s
findings partook of the absolute quality which the Court of Appeal considered
that they did. He had not suggested that ejection of the refusing passenger
from the bus was an indispensable ingredient of the required adjustment to the
PCP. Even if he had done, however, I do not consider that the appellant should
have been deprived of the opportunity of arguing that a less rigorous
adjustment was appropriate. The essential case made by the appellant was that
reasonable adjustments to the policy were required in order to overcome the
disparity of treatment between him and able-bodied passengers. The case that he
had to make was that the policy was deficient and that reasonable adjustments
could have cured, or at least ameliorated, that position. He was not required
to adopt unshakeably one particular form of reasonable adjustment to the
exclusion of all others. That is, no doubt, the reason that a whole series of
possible adjustments was adumbrated on his behalf before the Recorder, as detailed
by him in para 13 of his judgment.
140.
Even if it were the case that the Recorder had lighted on one particular
form of adjustment, it surely does not follow that the appellant was fixed with
that as the only possible avenue through which to advance his argument. I do
not consider that a respondent’s notice was required in order to allow the
appellant to pursue a different line from that espoused by a lower court. A
respondent’s notice is needed where a finding made by a lower court is
challenged or where a particular line of argument advanced by the respondent
below had been rejected. Neither situation obtained here.
Conclusion
141.
I would allow the appeal and restore the order which the Recorder made.
LORD CLARKE:
(dissenting in part)
142.
I initially thought that the resolution of this appeal depended upon the
application of regulation 12 of the Conduct Regulations (‘the Regulations’)
referred to by Lady Hale in para 96 of her judgment. It seemed to me that, so
far as relevant to this appeal, the critical provisions were contained in
regulation 12. In particular, regulation 12(2) provides for the use of an
“unoccupied wheelchair space”. Regulation 12(3) defines a wheelchair space as
being occupied if:
“(a) there is a wheelchair user in that space; or
(b) passengers or their
effects are in that space and they or their effects cannot readily and
reasonably vacate it by moving to another part of the vehicle.”
Regulation 12(2) provides:
“If there is an unoccupied wheelchair
space on the vehicle, a driver and conductor shall allow a wheelchair user to
board if
(a) the wheelchair is of a
type and size that can be correctly and safely located in that wheelchair
space, and
(b) in so doing, neither
the maximum seating nor standing capacity of the vehicle would be exceeded.”
143.
The express meaning of those provisions is that a wheelchair user must
be permitted to board and use the space, provided that there is no wheelchair
user already in the space or, if another passenger or passengers is or are in
the space, he or they must be unable “readily and reasonably to vacate it by
moving to another part of the vehicle”. It follows that the Regulations do not
themselves contemplate that such a person or persons would be asked or required
to get off the bus. The Regulations thus balance the interests of wheelchair
users and other passengers in a specific way. Since that balance does not
contemplate that a person using the space would be asked or required to get off
the bus altogether, I did not think that FirstGroup could have been in breach
of any duty to Mr Paulley under regulation 12 to direct that the lady with the
buggy leave the bus.
144.
In so far as the Recorder concluded that FirstGroup owed Mr Paulley a
duty to make adjustments to what is called a provision, criterion or practice
(or “PCP”) under which he would have priority as a wheelchair user and that, in
appropriate circumstances, another person using the wheelchair place who was
not using a wheelchair would be required to leave the bus, I thought that his
case was not established under regulation 12. Assuming that those were the only
relevant regulations governing the duty of the defendant (“the company”) in a
case of this kind it seemed to me that the only way in which it could be said
that it was in breach of duty to the claimant would be as follows. First, the
company should have ensured that its drivers considered whether, in
circumstances like these, a person with a child and a buggy could (in the words
of regulation 12(3)) readily and reasonably vacate the space by moving to
another part of the bus. For my part, I do not think that it was sufficient for
the driver (or the lady concerned) to refuse to wake the child up if, as
appears to have been the case on the facts, he or she was asleep. Moreover, it
was not, in my judgment, sufficient for the driver to do no more than ask the
lady to move out of the wheelchair space.
145.
In para 5 of his judgment the Recorder set out the company’s policy,
both at the time of the incident and at the time of the trial. The first was in
these terms:
“Wheelchairs do not have priority
over buggies, but to ensure that all our customers are treated fairly and with
consideration, other customers are asked to move to another part of the bus to
allow you to board. Unfortunately, if a fellow passenger refuses to move you
will need to wait for the next bus.”
That was on the website but was changed because “the
wheelchair policy on the website did not reflect the policy” adopted by the
company. It was replaced by this.
“Wheelchair users have priority use
of the wheelchair space. If this is occupied with a buggy, standing passengers
or otherwise full, and there is space elsewhere on the vehicle, the driver will
ask that it is made free for a wheelchair user. Please note that the driver has
no power to compel passengers to move in this way and is reliant on the
goodwill of the passengers concerned. Unfortunately, if a fellow passenger
refuses to move you will need to wait for the next bus.”
146.
It is not now in dispute that neither of those terms is a satisfactory
PCP. The question is whether the bus company made reasonable adjustments to the
PCP. The reason that it is not now contested that those adjustments are not
reasonable is that both leave the decision whether to vacate the space and to
move to another part of the bus entirely to the person using the wheelchair
space. Under them, if that person refuses to move, that is the end of it. For
the reasons given by Lady Hale and Lord Kerr and (I think) by Lord Neuberger,
Lord Toulson and Lord Reed, I agree that the failure to make further
adjustments to the PCP was contrary to the law as it stood when the Regulations
were introduced.
147.
For these reasons, I would hold that the company was in breach of duty
owed to Mr Paulley in failing to take more steps than it did in response to his
request to use the wheelchair space in his wheelchair. In short, I agree with
Lord Toulson and Lord Neuberger that it should have gone further than it did.
See, in particular para 83 of Lord Toulson’s judgment, with which I agree. I
further agree with him, and indeed with Lord Neuberger, that the appeal should
be allowed, at least to the extent that they propose. I also agree in this
regard with Lady Hale and Lord Kerr.
148.
The question then arises, or would arise, whether there is any basis
upon which the order for damages should be sustained. It is accepted by both
Lord Neuberger and Lord Toulson that this alternative case was advanced by the
claimant at first instance. I agree that the claimant should be permitted to
take the point, since (whatever may have been said in the Court of Appeal), all
parties were in a position to argue the point before this Court. The next
question is whether, if the bus driver had taken further steps to put pressure
upon the lady with the buggy, there was a sufficient prospect that she would
have moved from her place to another part of the bus sufficient to satisfy the
relevant test of causation.
149.
Lord Kerr concludes that, if the policy had been more authoritative, and
the lady had been told that she had to move and that the company’s policy was
that she must do so, there was at least a real prospect that she would have
moved. I agree. It seems to me to be a reasonable inference from the facts that
it was practicable for her to move to another part of the bus. It was not the
evidence of the driver that there was nowhere else she could go. His requests
were consistent only with the conclusion that it was both reasonable and
practicable for her to move elsewhere on the bus. There is no evidence that she
was faced with only two alternatives, namely staying where she was in the
wheelchair space or leaving the bus. In these circumstances I agree with Lord
Kerr that there is at least a real possibility that, if the position had been
explained to her in clear terms, she would have moved elsewhere on the bus,
even though it would have involved waking the child. I would go further. It
seems to me that, if the problems and the policy had been put clearly to her,
it is more likely than not that she would have agreed to do so.
150.
The question then arises whether, if the driver had told the lady that
she must move and if, as I think, it is more likely than not that she would
have done so, it is clear that there was somewhere else in the bus she could
(and would) have gone to. It is common ground that the driver asked the lady if
she would move elsewhere in the bus in order to accommodate the wheelchair. It
is I think clear that there was somewhere else for her to go on the bus. The
further question then arises whether the buggy would have been able to be
folded up. Again, it seems to me to be more likely than not that the buggy was
foldable. First, although there may be some exceptions, buggies are ordinarily
foldable. Secondly, the driver’s evidence (in his statement) was that he asked
the lady if she would fold her buggy up so that Mr Paulley could travel on the
bus. In his statement he added at paras 45 and 46:
“45 The lady pointed out to
me that her child was fast asleep within the buggy and that she had no
intentions of waking the child or removing the child from the buggy.
46. It was clear to both me
and Mr Paulley that the lady was refusing to assist.”
The driver did not say that the lady told him that it was
not possible to fold up the buggy.
151.
When he was asked whether there was anywhere else for the buggy and
child to go if they moved out of the space, the driver said no. However, he was
then asked whether there was any alternative to asking the person with the
buggy to get off the bus. He said that the alternative was to fold down the
buggy if possible, “if the buggy would fold down”. It is true that he was then
asked “And they had refused to do that?” and he replied yes. There is however
no evidence that he heard the lady say that. As I see it, he inferred that from
the reply recorded in his statement.
152.
Ironically perhaps, the only evidence which might be said to support the
conclusion that the buggy in question could not be folded up is in the evidence
of Mr Paulley. In his statement he said at para 24 that he appreciated that “the
wheelchair space is a good place for people to park their pushchairs, but they
can at least fold them up”. That suggests that he thought that the buggy could
be folded up. However, earlier in his statement he said at para 14 that, while
he was boarding the bus, the following exchange took place between the driver
and the lady with the buggy:
“Of his own initiative, the driver
turned to the lady and asked if she would fold it [ie the buggy] down so that I
could use the wheelchair bay. The lady (who was on her mobile phone) responded
by saying that the pushchair did not fold down and so she wouldn’t move.”
153.
It is true that in the Court of Appeal Lewison LJ at para 3 accepted
that account, although he did not advert to the driver’s evidence set out
above. I am bound to say that it seems unlikely to me that it was not possible
to fold the buggy and that it is more likely than not that the true reason for
her attitude was the inconvenience of moving the child and the buggy when the
child was asleep, which was essentially the reason she gave.
154.
If those conclusions are correct, Mr Paulley would be entitled to
succeed even if the only relevant provisions were contained in regulation 12 of
the Conduct Regulations. However, Lady Hale and Lord Kerr place considerable
weight upon the position as at the date of the incident. Lady Hale has
described the Regulations and their provenance in detail in her para 96, which
she puts in their context in her paras 93-95 and 98. Importantly, she also
stresses the importance of section 21ZA of the Disability Discrimination Act
2005 in her para 98. As she says, that section provided for the application of
sections 19 to 21 of the DDA 1995 in modified form to providers of transport
services. I agree with her that in passing that Act, Parliament must have
concluded that the earlier regulations were not sufficient to enable disabled
passengers to enjoy the same access to public transport as is enjoyed by
non-disabled passengers. As she says, those sections provide that, where
providers of transport services had a policy, practice or procedure which would
make it impossible or unreasonably difficult for disabled persons to make use
of a service which they provided to other members of the public, it was their
duty to “take such steps as is reasonable in all the circumstances of the case
for him to take in order to change that practice, policy or procedure so that
it no longer has that effect”.
155.
I now appreciate that the critical point in this appeal is not whether
there was a breach of regulation 12 of the Conduct Regulations. As Lady Hale
says at para 101, the issue agreed between the parties for the purpose of this
appeal is a simple one, namely whether the Recorder was correct in concluding
that the company was in breach of the Equality Act 2010. In her paras 99 to 109
Lady Hale convincingly explains why the answer to that question is yes. The
essential points which have persuaded me are these, which are really no more
than those made by Lady Hale.
156.
The bus company as the service provider must comply with three
requirements set out in paragraph 2(1) of Schedule 2 to the 2010 Act. The first
is in section 20(3) as modified by the Schedule. It reads:
“The first requirement is a
requirement, where a [PCP] of A’s puts disabled persons generally at a
substantial disadvantage in relation to a relevant matter in comparison with
persons who are not disabled, to take such steps as it is reasonable to have to
take to avoid the disadvantage.”
As Lady Hale explains in para 99, failure to comply with
that requirement is a failure to make reasonable adjustments under section
21(1) and A discriminates against a disabled person if A fails to comply with
that duty in relation to that person under section 21(2). This is a prospective
duty, owed to disabled persons generally, to take proactive steps to meet their
needs, and if an individual suffers as a result, then that failure amounts to
discrimination against him.
157.
I agree with the general points made by Lady Hale in para 100. In
particular, the position under the 2010 Act is different from that under the
Conduct Regulations. Disabled people are a special case. Their needs are to be
treated differently from those of others, including those with buggies. As Lady
Hale puts it in paras 101 and 102, at the time of the incident the company’s
policy was that wheelchair users had no priority over buggies and that infected
both the content of the notices and the approach to enforcement. It should have
been made clear to passengers that wheelchair users had priority over others,
who should have been required to vacate the wheelchair space. I agree with Lady
Hale that disruption and confrontation would be unlikely.
158.
As indicated above, it is my view that it is more likely than not on the
facts here that, if the lady had been required to move, as opposed to merely
being asked to do so, she would have done so. I am also of the view that if,
contrary to my view of the facts of this case, a buggy cannot be folded down,
the PCP should have been adjusted to make it clear that, if necessary to enable
a wheelchair user to use the wheelchair space, the buggy user (and not the
wheelchair user) must get off the bus. Only in this way will the statutory
policy of priority for wheelchair users be carried out.
159.
In reaching this conclusion, I do not disagree with the points made by
Lady Hale in para 105. As she says, while non-disabled people are not entitled
to the same treatment as disabled people, especially after the 2010 Act, the
adjustments to be expected for disabled people must be reasonable ones, and
there will obviously be circumstances in which it is not reasonable to expect
the space (or indeed the bus) to be vacated. However, this is not such a case.
160.
In conclusion, I agree in particular with the reasoning of Lady Hale and
Lord Kerr. I too would allow the appeal. I also would answer the question
posed, namely whether the company was in breach of the 2010 Act in the
affirmative. I agree with Lady Hale that, whatever concession may have been
made in the Court of Appeal, it cannot be just to deprive Mr Paulley of the
damages which the Recorder awarded him. As I say in para 148 above, all parties
were in a position to argue the point before this Court. I would therefore
restore the order made by the Recorder.
