The UK Supreme Court has, in part, overruled the Court of Appeal in an appeal in the case of Paulley v Firstgroup PLC [2017], bringing to an end protracted litigation over whether wheelchair users or mothers with pushchairs should be given priority over reserved spaces on buses. In Paulley v First Group PLC [2013], a bus company was ordered to pay compensation to a wheelchair user who was unable to board a bus because the wheelchair space was occupied by a mother and her baby, who was sleeping in a pushchair. As the child was asleep, the mother refused to move when asked by the driver and the wheelchair user had to wait for the next bus, causing him to miss a train and arrive over an hour late for a family lunch. The bus company in this case operated a ‘first come, first served’ policy for the use of the space and would only request that a non-wheelchair user move. The policy did not allow for the bus driver to insist that the woman move and close her pushchair. The bus company appealed the decision to award compensation to the wheelchair user.
The Court of Appeal held that, to require a mother with pushchair to leave the bus following a refusal to vacate the wheelchair space would be to treat her the same as a passenger who smoked, made nuisance or caused anti-social behaviour on a bus. To treat a mother with a pushchair this way was unreasonable and they could occupy a wheelchair space with their buggy on a first come, first served basis. While parents with pushchairs can be asked to give way to a wheelchair user, they were not obliged to move (Paulley v First Group PLC [2014]). The Court therefore ordered that no compensation should be paid.
Regulations concerning wheelchair spaces on buses
Buses are public service vehicles and must comply with Schedule 1 of the Public Service Vehicles Accessibility Regulations 2000. These require a bus to be fitted with not fewer than one wheelchair space on the lower deck of the bus. While the space can have a tip-up seat in the wheelchair space, there must be a sign which states ‘Please give up this seat for a wheelchair user’ and a further sign that shows a representation of a person in a wheelchair. The Supreme Court agreed that, while the regulations provided for signage required the seat to be given up, they did not require the space to be given up for a wheelchair user.
Regulations governing conduct on buses
The Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers) Regulations 1990 (as amended) requires a driver, inspector and conductor to take all reasonable steps to ensure that the regulations relating to the conduct of passengers are complied with (regulation 5(2)).
When the conduct regulations were amended in 2002, the Government issued guidance on their application (Department for Transport, 2002). The guidance restated the Government's commitment to comprehensive and enforceable civil rights for disabled people and its aim of achieving a fully accessible public transport system.
In relation to the wheelchair space, the guidance said that a wheelchair user must only be carried on public transport if a wheelchair space was available and the seating and standing capacity of the vehicle was not be exceeded. If there is no unoccupied wheelchair space, a person in a wheelchair cannot travel.
However, the guidance goes on to say that the opportunity for a wheelchair user to travel may depend on other passengers and how full the vehicle is. If there is space available, then any passengers in the wheelchair space should be asked to move, but the Government acknowledges that this may not be practical if:
The Conduct Regulations Guidance in relation to wheelchair users limits a bus company's duty to asking a non-wheelchair user to move, rather than insisting that they move, even if this means the wheelchair user cannot then travel because of a lack of space (Department for Transport, 2002).
Equality Act 2010
The Equality Act 2010 now governs cases of alleged discrimination on the grounds of a protected characteristic. Disability is a protected characteristic.
The Equality Act 2010 requires a public service provider such as a bus company to make reasonable adjustments where a provision, criterion or practice (often called a PCP) of the company places a disabled person at a substantial disadvantage when compared with persons who are not disabled. The reasonable adjustments require such steps as are reasonable to avoid the disadvantage (section 29 (7)).
The Supreme Court held that the bus company was a public service provider and the case concerned people who were wheelchair users, rather than any person with a disability. They then went on to consider two alternative policy approaches to the issue of non-wheelchair users occupying a reserved wheelchair space.
‘The Supreme Court's judgment fell short of the mandatory access demanded by disabled people in wheelchairs’
Policy requiring and enforcing non-wheelchair users to vacate the reserved space
The Supreme Court held that any absolute, mandatory rule that any non-wheelchair user had to vacate the space would not be reasonable. The Court accepted that it might be reasonable in some circumstances for a person to refuse to vacate the space—and one such reasonable occasion might be where the space is occupied by a mother with a baby sleeping in a pushchair. Even if the mandatory rule was qualified so that a passenger had to vacate if it was reasonable, its implementation if mandatory would still result in someone, perhaps a mother and baby, being ejected from the bus. Such enforcement could lead to confrontation and violence.
The Supreme Court held that a mandatory policy would not be the answer and should not be implemented as it was not clear that there was any statutory obligation on a passenger to comply with a policy relating to use of the space. Under the Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers) Regulations 1990, reg. 6(1)(b) and reg.12(3)(b), the most a driver could require of a passenger was that they moved elsewhere in the bus. Regulation 6(1) (b) had a requirement of reasonableness, and most passengers refusing to vacate would believe they were being reasonable. The less aggressive policy of stopping the bus until the passenger vacated the space was appropriate, provided that it was not required to be mandatory (Paulley v Firstgroup PLC [2017]).
Policy of requiring and pressurising non-wheelchair users to vacate
The Supreme Court held that a policy that required and, if that did not work, pressured a person to move from a reserved space was the correct approach in law. The bus company did have notices in the spaces that required, rather than merely requested, a non-wheelchair user to vacate the space as required by the Public Service Vehicles Accessibility Regulations 2000. However, it was not enough for the bus company to instruct its drivers simply to request non-wheelchair users to vacate and do nothing further if they refused. Where a driver concluded that a refusal to move was unreasonable, it was unjustifiable not to require some further step by the driver. In particular, where there was some other place on the bus where the passenger could move, there was no reason why a driver should not be expected to rephrase a request as a requirement and consider stopping the bus with a view to pressurising the passenger to move. The Supreme Court held that it should not be difficult for a driver to tell whether there was another part of the bus the passenger could reasonably use (Paulley v Firstgroup PLC [2017]).
Interestingly, the Supreme Court held that, because the bus company policy did not require the driver to use more moral pressure to convince the passenger with the buggy to move, the appeal would succeed. However, because the evidence in the case suggested it would have been unreasonable to pressure a mother with a child asleep in a buggy to move when there was no suitable space available, the wheelchair user was not awarded damages by the Supreme Court (Paulley v Firstgroup PLC [2017]).
Conclusion
The determination of wheelchair users to assert their right to travel on public transport by having unhindered access to reserved wheelchair spaces has seen this case reach the highest domestic court in the UK, the Supreme Court, whose judgment fell short of the mandatory access demanded by disabled people in wheelchairs. There should not be a policy that was enforced by ejecting passengers from the bus if they refused to comply.
The ruling of the Supreme Court does place a duty on bus companies to ensure that their drivers bring pressure to bear on passengers who refuse to vacate a wheelchair space, but only where the driver sees that it is reasonable for the passenger to move to a different part of the bus. It is likely that a bus driver seeing a mother with a sleeping baby in a pushchair occupying the space would conclude that it was unreasonable to ask them to move and if that meant no room from the wheelchair user to board, then they would not be able to travel.