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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> FirstGroup Plc v Paulley [2017] UKSC 4 (18 January 2017) URL: http://www.bailii.org/uk/cases/UKSC/2017/4.html Cite as: [2017] WLR(D) 22, [2017] WLR 423, [2017] IRLR 258, [2017] UKSC 4, [2017] RTR 19, [2017] 2 All ER 1, [2017] 1 WLR 423 |
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[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
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)
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.
“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.”
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.
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.”
“(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.
“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
“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.
“(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.”
“(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”.
“(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.”
“(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
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.
“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).
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:
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:
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.
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.
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.
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.
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.
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.
LORD TOULSON: (with whom Lord Reed agrees)
“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.”
“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.”
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.
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.
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.
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)
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).
“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.
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
A more peremptory notice?
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.”
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?
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.”
Difficulty in enforcement
Inflexible application of the adjusted policy
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?
Conclusion
141. I would allow the appeal and restore the order which the Recorder made.
LORD CLARKE: (dissenting in part)
“(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.
“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.
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.”
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”.
“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.
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.