Firstgroup Plc v Doug Paulley
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Underhill,Lady Justice Arden |
| Judgment Date | 08 December 2014 |
| Neutral Citation | [2014] EWCA Civ 1573 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 December 2014 |
| Docket Number | Case No: A2/2014/0179 |
[2014] EWCA Civ 1573
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
Recorder Isaacs
2YL85558
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Lewison
and
Lord Justice Underhill
Case No: A2/2014/0179
Mr Martin Chamberlain QC & Mr Tim Johnston (instructed by Burges Salmon LLP) for the Appellant
Mr Robin Allen QC & Ms Catherine Casserley (instructed by Unity Law Limited) for the Respondent
Hearing dates: 11 & 12 November 2014
Introduction
This appeal has attracted some public interest, so it is important to be clear about the issue. It is not about whether non-wheelchair users should move out of the wheelchair space on a bus in order to accommodate a passenger in a wheelchair. Of course they should if that is possible. Nor is it about whether mothers standing in the wheelchair space with a child in a folding buggy should fold their buggies in order to make way for a wheelchair user. Of course they should if that is possible. Non-wheelchair users, unlike wheelchair users, will normally have a choice about which part of the bus to sit or stand in. Common decency and respect for wheelchair users should mean that other passengers make way for them. What is at issue is whether the bus company must have a policy to compel all other passengers to vacate the wheelchair space irrespective of the reason why they are in it, on pain of being made to leave the bus if they do not, leaving no discretion to the driver.
For the reasons that follow I have concluded that that is a step too far.
The facts
Mr Doug Paulley is a wheelchair user. On 24 February 2012 he arrived at the bus station at Wetherby at about 9.35 a.m. intending to catch the 99 bus to Leeds. According to the timetable, the bus was due to leave at 0936. The next scheduled buses were at 0956 and 1036 and then at 56 and 36 minutes past the hour. On arrival at Leeds he intended to catch the train to Stalybridge to meet his parents for lunch. The bus was already at the stand. It was a bus that was operated by a subsidiary of FirstGroup. It was equipped with a lowering platform and a wheelchair ramp. There is also a space provided for wheelchairs in the bus. When Mr Paulley attempted to board the bus the driver asked him to wait because the wheelchair space was occupied by a woman with a sleeping child in a pushchair. The driver asked her to move and to fold down her pushchair so that Mr Paulley, in his wheelchair, could use the space. She said 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. The driver considered his request, but refused it, because there was no safe way of securing the wheelchair and the bus was to take a particularly winding route. Although Mr Paulley was a frequent bus user, this was the first time that he was unable to get on the bus because a pram or pushchair user refused to vacate the wheelchair space.
In consequence Mr Paulley had to wait for the next bus, which set off about a quarter of an hour or twenty minutes later. Because he took a later bus than he intended to, Mr Paulley missed his train at Leeds; and had to take a later train which arrived at his final destination an hour later than he had intended.
Mr Paulley sued FirstGroup for unlawful discrimination against him on the ground of his disability and succeeded before Recorder Isaacs, sitting in the Leeds County Court, who awarded him £5,500 in damages.
The case turned on FirstGroup's policy about wheelchairs and their users. What it said at the time of the incident was this:
"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."
By the time of trial the wording of the policy had changed to some extent and read, so far as material as follows:
"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."
The judge thought that the changes were immaterial. There was also a sign in the bus that read "Please give up this space if needed for a wheelchair user." The bus driver had followed the company policy, by asking the woman with the pushchair to move, but by taking her refusal no further. The evidence of Mr Birtwistle, FirstGroup's Projects Manager (UK Bus), was that "in the main" passengers comply with a request to give up the wheelchair space; but that did not happen on this occasion. Mr Birtwistle also explained why FirstGroup had adopted the policy that it did. He said that the company had carried out a review of the way it communicated with its customers, and found that it was putting up a number of negative prohibitory notices on buses. The view was taken that it would be better policy to adopt more customer-friendly notices, which were more pleasant and more engaging. The policy about the wheelchair space was designed to cause the customer to think "Somebody else needs this space. I will be reasonable. I will move away from it." It was intended to be non-confrontational and placatory.
The judge's judgment
The judge found that FirstGroup's policy was a "provision criterion or practice" (a "PCP") which placed Mr Paulley at a substantial disadvantage by comparison with non-disabled bus passengers. He went on to find that there were reasonable adjustments that FirstGroup could have made which would eliminate that disadvantage. Those reasonable steps were an alteration to the conditions of carriage which would require a non-disabled passenger occupying a wheelchair space to move from it if a wheelchair user needed it; coupled with an enforcement policy that would require non-disabled passengers to leave the bus if they failed to comply with that requirement. It is common ground that, as presently drafted, FirstGroup's conditions of carriage do not give a driver power to require (as oppose to request) a passenger to move out of the wheelchair space, or to leave the bus if he or she refuses to do so.
On very similar facts, in Black and Others v Arriva North East Ltd (1 May 2013) HHJ Bowers, sitting in the Middlesborough County Court, held that Arriva, who had a policy identical to that of FirstGroup, were not guilty of unlawful discrimination. Because the two cases came to different conclusions on almost identical facts, permission to appeal was granted in both cases. However the appeal in Black has since been withdrawn, so Mr Paulley's case is now the only live appeal.
The legal framework
Much of the legal framework is common ground. The bus with which we are concerned is a public service vehicle which is required to comply with Schedule 1 to the Public Service Vehicle Accessibility Regulations 2000. Paragraph 2 of that Schedule requires a bus to be fitted with not less than one wheelchair space of specified dimensions on the lower deck of the bus, which complies either with paragraph 3 or with paragraph 4 of that Schedule. The bus in our case complied with paragraph 4. That paragraph also envisages that a folding or tip-up seat may be placed in the wheelchair space; but there must be a sign on or near such a seat which states "Please give up this seat for a wheelchair user". The bus must also carry a sign adjacent to the wheelchair space which conforms with the diagram in Part II of the Schedule. That diagram simply shows a representation of a person in a wheelchair. It does not require that sign to say in addition "Please give up this space for a wheelchair user"; although the sign on the bus in our case did. Schedule 2 to the Regulations also deals with more general matters of accessibility for disabled persons. Paragraph 3 provides that there must be not less than four seats designated "as priority seats for use by disabled passengers." There must also be a sign on or near a priority seat "indicating that disabled persons have priority for the use of that seat." Thus whereas the regulations give explicit priority to disabled persons who wish to use the priority seats, they do not give similar priority to wheelchair users who wish to use the wheelchair space.
In addition to the physical characteristics of buses, legislation also enables regulations to be made about the conduct of drivers and passengers. The enabling provision in section 25 of the Public Passenger Vehicles Act 1981 enables regulations to be made authorising a driver or,...
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