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20th January 2017

A win for the Wheelchair?

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In FirstGroup v Paulley, the Supreme Court has held that the operator’s policy regarding wheelchair space on its buses was in breach of the duty to make reasonable adjustments under section 29(2) Equality Act 2010.
Like other operators, FirstGroup’s buses display a sign which reads. ‘Please give up this space for a wheelchair user’. The Court considered that it was not enough to instruct drivers to request that non-wheelchair users vacate the wheelchair space if required by a wheelchair and do nothing if the request was ignored: instead some further step to pressurise the non-wheelchair user to vacate the space should have been considered.

The case had already been considered by the Court of Appeal, which overturned the County Court’s decision as they did not consider it was reasonable for the operator to both alter the wording of the notice and adopt an enforcement policy. They had also overturned the award of £5,500 in damages. The Supreme Court, by a majority, determined it would not be appropriate to award any damages to the Claimant because they were not satisfied that a more forceful approach would necessarily have made any difference in this case.

The decision accords with the amendments that were made to TfL’s Big Red Book when the case was first litigated, which tried to deal with the competition for space between buggies and wheelchairs. The Big Red Book advises drivers to use the iBus automated announcement to make it clear when the wheelchair space is needed. ‘If necessary, politely, but firmly ask the buggy owners to move or fold their buggies to let the wheelchair user into this area as this is the only safe place for them to travel. Explain that you will give them the time to do this and be patient and polite.’ It is hard to see what more a bus driver could do, given that all operators require their drivers to remain in the cab for their own safety at times of potential conflict.

Another aspect of the case is the relevance of the competing rights of others. The Judge at first instance commented that inconvenience to mothers with buggies is a “consequence of the protection that parliament has given to disabled wheelchair users and not to non-disabled mothers with buggies”. This inflexible approach was criticised in the Court of Appeal judgment, who made clear their view that the requirement to make “reasonable adjustments” for the needs of wheelchair users did not trump all other considerations. The Supreme Court agreed.

Whilst disability rights groups have claimed this decision as a victory for the rights of wheelchair users, it seems unlikely to result in a significant change of practice by bus companies, and other service providers, and it establishes clearly that the rights of other passengers to use the space allocated by wheelchair users must also be considered and respected. This will be determined on a case-by-case basis which, whatever the rights and wrongs, is bound to result in uncertainty. Recognising this, the Supreme Court judgment suggests that the relevant legislation should be reconsidered by Parliament.

For more information please contact Sam Murray-Hinde or Edward Wheen on 020 7400 6574.