Wheelchair user wins appeal to Supreme Court over bus company policy

The Supreme Court has unanimously allowed – but only to a limited extent – a disabled man’s appeal over the lawfulness of a bus company’s policy on the use of the space provided for wheelchair users.

The case of FirstGroup Plc v Paulley [2017] UKSC 4 was heard by a seven-justice panel.

The appellant, Doug Paulley, is a wheelchair user who attempted to board a bus operated by a subsidiary of FirstGroup on 24 February 2012. The bus had a space marked by a wheelchair sign and a notice saying, “Please give up this space for a wheelchair user”.

At the time Mr Paulley attempted to board, a woman with a sleeping child in a pushchair occupied this space. She was asked by the driver to fold down the chair and move; however, she refused, stating that it did not fold down. Mr Paulley had to wait for the next bus as a result.

Mr Paulley issued proceedings against FirstGroup for unlawful discrimination on the ground of his disability, claiming that the bus company had failed to make “reasonable adjustments” to its policies contrary to section 29(2) of the Equality Act 2010.

The Recorder found that FirstGroup operated a “provision criterion or practice” (“PCP”) consisting of 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.” This placed Mr Paulley and other wheelchair users at a substantial disadvantage by comparison with non-disabled passengers. There were reasonable adjustments that the Recorder considered FirstGroup could have made to eliminate the disadvantage: (i) altering the notice positively to require non-disabled passengers occupying a space to move if a wheelchair user needed it; and (ii) adopting an enforcement policy requiring non-disabled passengers to leave the bus if they failed to comply.

The Recorder found in favour of Mr Paulley and awarded him £5,500 damages. FirstGroup’s appeal was unanimously allowed by the Court of Appeal which held that it was not reasonable to hold that FirstGroup should adjust its policy 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 to positively enforce that requirement with the ultimate sanction being removal from the bus.

The Supreme Court unanimously allowed Mr Paulley’s appeal, “albeit only to a limited extent”.

Lord Neuberger, President of the Supreme Court, gave the lead judgment (with which Lord Reed agreed) allowing the appeal but only to the extent that FirstGroup’s policy requiring a driver to simply request a non-wheelchair user to vacate the space without taking any further steps was unjustified. Where a driver who has made such a request concludes that a refusal is unreasonable, he or she should consider some further step to pressurise the non-wheelchair user to vacate the space, depending on the circumstances. Lord Toulson and Lord Sumption wrote concurring judgments. On the issue of the order to be made, this majority declined to uphold an award of damages.

Lady Hale, Lord Kerr and Lord Clarke also allowed the appeal but they would have restored the order of the Recorder in full, including upholding the award of damages.

The background to the case was that under section 29 of the 2010 Act, as a “public service provider”, FirstGroup must not discriminate against a person requiring its services by not providing the person with the service, and it must make “reasonable adjustments” to avoid substantial disadvantage to disabled persons.

Lord Neuberger said the Recorder’s judgment effectively required a policy that could lead to a non-wheelchair user being ordered off the bus. The Court of Appeal was right to reject this, the President said.

“[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,” the judge said.

Lord Neuberger continued: “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……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.”

The President added that it was not clear to him that there was any statutory obligation on a passenger to comply with a policy relating to use of the space. Nor would they appear to be under such an obligation to get off the bus if they failed to do so.

Lord Neuberger said that even though the hearing in the Court of Appeal had proceeded on the basis that it was not part of Mr Paulley’s case, the argument that FirstGroup’s PCP should have gone further than it did, albeit not as far as the Recorder concluded, had more force.

“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," he said.

The President added that there was no reason to doubt the evidence of 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. Lord Neuberger added that the use of specially emphatic language should not determine legal liability in this case.

The President said the Recorder’s view that the notice should have made it clear that the priority of wheelchair users over the space “would be enforced”, had its attractions. However, Lord Neuberger said he was ultimately not convinced by it.

He continued: “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.”

Lord Toulson agreed, adding that fresh legislative consideration was desirable. Lord Sumption also agreed albeit with reservations.

So far as damages were concerned, Lord Neuberger (with whom Lords Sumption, Reed and Toulson agreed) concluded that the Recorder did not specifically consider whether, if FirstGroup had simply required its drivers to be more forceful, there was a prospect that it would have made a difference in this case. It was therefore not possible to conclude that there would have been a real prospect that such an adjustment would have resulted in Mr Paulley not being placed in the disadvantage that he was, and so an award of damages was not possible.

Lady Hale, Lord Kerr and Lord Clarke dissented in part. As the Recorder found, it was reasonable to expect bus operators to do more than FirstGroup did. His judgment did not necessarily require ejection of a passenger who refused to move from the bus nor did it create an absolute rule. Had the practice suggested by the claimant been in force, there was at least a real prospect that Mr Paulley would likely have been able to travel. This being so, it was unjust to deny Mr Paulley damages.

The Equality & Human Rights Commission, which backed the appellant, welcomed the ruling. Its chair, David Isaac, argued that it was “a victory for disabled people’s rights” and “a hugely important decision, which has helped clarify the current state of the law, and will give confidence to thousands of disabled people in Britain to use public transport”.

Isaac added: “Public transport is essential for disabled people to live independently, yet bus companies have not made it easy for this to happen. This is a victory for disabled people’s rights. The success of this case means bus companies will have to end ‘first come, first served’ polices, increasing peace of mind for disabled people.

“This has been about correcting a confusing policy which has caused untold problems for disabled people. For years, wheelchair users have been deterred from using vital public transport links because they could not be sure they will be able to get on. Today’s judgment will make that easier.”

The Commission said it would press the Government to commit to legislative changes in the Bus Services Bill.

Chris Fry of Unity Law, Mr Paulley’s solicitors, said: “This decision delivers cultural and practical change for disabled people. It establishes what we are calling the ‘Paulley Principle’ which is that bus companies have to give priority use to disabled customers over the wheelchair space.

“If you rely need a wheelchair to get around and have had to endure the stress and anxiety of not knowing whether you’re going to be able to get on a bus, this judgment changes your everyday life. The law is on your side.”

[This article is based in large part on the Supreme Court’s press summary]