When a passenger with a pushchair would not leave the wheelchair space, Doug Paulley could not board a FirstGroup bus. The Supreme Court held that simply asking her to move, and doing nothing if she refused, was not enough: where she could reasonably move elsewhere on the bus, drivers should insist and sometimes wait briefly. The Court did not require unwilling passengers to be forced off, and it did not restore his damages.
The missed journey
At about 9.35am on 24 February 2012, Doug Paulley, a wheelchair user, arrived at Wetherby for a FirstGroup bus to Leeds, intending then to take a train to Stalybridge. The wheelchair space carried a notice: ‘Please give up this space for a wheelchair user’. A woman with a sleeping child in a pushchair was already there. The driver, Mr Britcliffe, asked her to fold the pushchair and move. She said that it did not fold and refused. He would not let Mr Paulley fold his wheelchair and use an ordinary seat, because it could not be secured safely on a winding route. Mr Paulley took a bus about 20 minutes later, missed his train and arrived an hour late. It was the first time that a refusal to vacate the space had stopped him boarding.
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He sued FirstGroup for disability discrimination, alleging a failure to make reasonable adjustments. Recorder Isaacs, in the Leeds County Court, found for him and awarded £5,500. The Court of Appeal allowed the company’s appeal.
The duty, and the company’s policy
Under the Equality Act 2010, a service provider must take such steps as are reasonable to avoid a substantial disadvantage caused by a provision, criterion or practice. Substantial means more than minor or trivial. The duty is owed to wheelchair users generally. FirstGroup did not challenge the conclusion that a first-come, first-served approach to the space put wheelchair users at a substantial disadvantage. Its policy was that wheelchair users had priority and that the driver would ask for the space to be freed if there was room elsewhere, but had no power to compel anyone to move. If the passenger refused, the wheelchair user had to wait. That is what the driver did.
Separate conduct regulations require a driver to allow a wheelchair user to board if the space is unoccupied. A space counts as occupied if another passenger cannot readily and reasonably move elsewhere on the bus. Those regulations do not require that passenger to leave the bus.
Why forced removal was rejected
The Recorder held that the notice should have required, not merely requested, a non-wheelchair user to give up the space, and that the requirement should have been enforced, if necessary by the passenger leaving the bus. He thought that, once known, such a rule would rarely cause confrontation, and that inconvenience to a parent with a buggy was the result of the protection given to wheelchair users.
The Court of Appeal disagreed. An absolute rule would be unfair to a passenger whose refusal was reasonable. A rule limited to unreasonable refusals would require the driver to make that judgment and then to remove the passenger, halt the bus or wait for the police. Unlike a breach of the conduct regulations, a refusal to move was not clearly a criminal offence the police could enforce.
Lord Neuberger, with whom Lord Reed agreed, and Lord Toulson, with whom Lord Reed also agreed, reached the same conclusion. Lord Sumption agreed with the outcome. Lord Neuberger read the Recorder’s decision, consistently with the way the case was argued in the Court of Appeal, as requiring compulsion off the bus if necessary. The conduct regulations did not automatically forbid a stricter policy, but an absolute rule could still be unreasonable: the passenger might be disabled, elderly, travelling with infants, hurrying to hospital, or vulnerable away from that space. Enforcing even a qualified rule was likely to cause confrontation, delay and possibly violence. There was no clear statutory duty on the passenger to obey a company rule about the space. A policy that always required the driver to stop until the space was cleared would be unfair to other passengers. Lord Toulson added that the risk of a full bus is shared by all travellers, and that someone who cannot readily and reasonably move elsewhere should not be ordered off midway, particularly a child or a disabled person who is not a wheelchair user.
Drivers must do more than ask once
The majority nevertheless held that one request, followed by nothing, was not enough. Where the driver concludes that the refusal is unreasonable and there is somewhere else on the bus, the request should be restated as a requirement. If that fails, especially if the bus is ahead of schedule, the driver should consider waiting a few minutes to press the passenger to move. Lord Toulson put the same duty as training staff to say that a person who can reasonably and readily move must do so, and to wait for a time unless the bus is late. The right response still depends on the reason for the refusal, whether the bus is full or on time, and the journey. The adjustment need not work in every case.
Lord Neuberger would not have required a harsher notice. He read the existing wording as already a polite requirement, and accepted evidence that more directive signs were less effective. A notice saying that priority would be enforced would have been untrue once removal from the bus was rejected. Lord Sumption doubted that telling a passenger they were required to move would be legally true, because a company policy cannot create a duty the regulations do not impose. He would have preferred legislation. He agreed, however, that the majority’s approach came as close as the Court properly could to the aim of preventing disability discrimination.
This more limited adjustment had been pleaded before the Recorder but was not the case run in the Court of Appeal. There was no finding that the woman could reasonably and readily have moved, and no finding that insistence or a short wait would have enabled Mr Paulley to board. Lord Toulson treated the account of her refusal as unchallenged. The Court did not send the case back. Lord Neuberger thought it right to state what the policy ought to have required, while accepting that this part of the decision was to some extent hypothetical. He found it unnecessary to decide whether drivers should have to compare passengers’ needs if the result might be an order to leave the bus.
The dissent
Lady Hale, Lord Kerr and Lord Clarke would have restored the Recorder’s order and the £5,500. They did not read his judgment as demanding forcible ejection in every case. For them, a clear rule of priority for wheelchair users, and a driver who says that the passenger must move, was a reasonable adjustment. Disabled passengers are entitled to positive steps not owed to other travellers, including parents with buggies. Lady Hale relied on the Recorder’s conclusion that Mr Paulley would have travelled had that practice been in force. Lord Kerr inferred at least a real prospect that the woman would have moved if told she must. Lord Clarke thought it more likely than not that she could have moved and that the buggy could have been folded, and that if it could not, she rather than the wheelchair user should have left the bus. Lord Toulson, with Lord Neuberger’s agreement, said that the division of opinion made fresh legislation desirable.
Verdict: The Court unanimously allowed the appeal to a limited extent. A driver should have been prepared to press an unreasonable refusal where a wheelchair user needed the space. The majority did not restore the £5,500 damages award. Lady Hale, Lord Kerr and Lord Clarke would have done so.
