Doug Paulley's blog

Today we won two cases against London Underground, over their failure to effectively promulgate information about lift closures and alternative step-free routes for disabled people.

Westminster

In October 2016, I attempted to get from Westminster to Kings Cross but was thwarted as both the lift at the main entrance and the alternative lift at Canon Row were out of order. Signs still directed people to the entrance on Canon Row, despite this lift having been out of order for a number of days.

Kings Cross

In May 2017, I traveled by Underground to Kings Cross station, to discover that the lift to the surface was out of order. No warning had been given at any other station, and the response station staff gave to my plea for help was inadequate.

Judgment

District Judge Troy gave judgment today, 10th January 2018. The following are extracts from my notes of his judgment. Whilst I am satisfied they are substantially accurate, they are not a verbatim record from the transcript (which I shall order.)

Westminster

In the circumstances, the defendant was in breach of its duty to make reasonable adjustments in respect to deficiencies in signage directing people requiring step-free access to Canon Row lift as opposed to the entrance via Westminster Pier. … In respect of the Westminster case, there has been a breach of the defendant’s obligations. …

The detriment was limited, but was not solely the time wasted going down to Canon Row entrance, but also to bear in mind the frustration caused from the access being blocked, and at that point being left uncertain as to what other options available to him. Although he didn’t have a specific train, this would be a legitimate source of annoyance, no different to an able bodied person sent on a wild goose chase. This would result in frustration, and doubly so for Mr Paulley as a wheelchair user. …

Service users doesn’t have to experience actual loss in order to experience detriment, it is enough that they would prefer to be treated differently.

Kings Cross

In respect of the King’s Cross incident, it is clear that this was notified on the website … Travel on the Tube is a very different scenario compared to mainline or air, where it may be a reasonable expectation for a traveller to check in advance whether services affected, especially if some general experience of difficulties, e.g. travelling on Northern Rail on a Saturday morning, or the recent impact on Gatwick airport caused by a drone. That’s all very well in those circumstances, but any one individual traveller using the Tube may undertake several tube journeys in any one day, of varying length from 1-2 stops or longer. I don’t think it’s reasonable to expect any traveller, able-bodied or not, to consult a website. What is needed is something more to alert the traveller at point of access.

The defendant contends that staff resources and communication make the use of whiteboards difficult and the information liable to be out of date, and that this produces bigger problems for travellers, especially to disabled travellers, who may need to commit greater diversions unnecessarily. The defendant contends that Electronic Service Update Boards (ESUBs) are updated regularly, but I already observed that regarding the Kings Cross incident these were not updated until after 16pm, though the original failure was at 0640. I have my doubts as to how promptly these ESUBs are updated. However, if the information on the ESUB is to be accessed, it requires travellers to sit in front of a screen whilst it scrolls through, without any knowledge that relevant information will be displayed. It may take only 9 seconds to scroll through, but it requires the traveller to locate the ESUB. It can be particularly difficult to navigate a station concourse, especially at peak times, for wheelchair users. …

It is not onerous to the defendant to post whiteboards, so as to be of particularly assistance to the disabled community, in the 12 stations with step-free access in Zone 1.

The alternative arrangements the defendant put in hand did not amount to reasonable adjustments to avoid the situation. …

This alternative option (of assistance up the escalator) should have been offered at the outset, avoiding the distress felt by the defendant in waiting on the platform in uncertainty and with the train deadline. … The defendant had adopted an intransigent attitude in initial dealing with the claimant, in making it clear that the only alternative offered was to take the tube to Caledonian Road and a bus back. The claimant specifically questioned alternatives, including the fireman’s lift or face to face assistance, but this was not explored.

My decision may have resource implications for the defendant, but if the defendant is to comply with its obligations to make reasonable adjustments, individual employees should be identified and trained to provide such assistance to wheelchair users, especially at major stations and especially those answering emergency call points. They need task cards and their training updated to offer alternative mechanisms of egress.

Regarding Kings Cross, the detriment was more serious. … I am unimpressed by the handling of the incident by the operative, which increased the claimant’s frustration. Although a solution found, there was a period in which the claimant experienced detriment and worry.

Judicial comment

I therefore make observations (not intended to modify the judgment or understanding of the law) on future expectations regarding the defendant due to resource implications.

On the methodology of notifying incidents affecting travellers, I have come to the view that the use of any one is mechanism is insufficient, and in respect of the facts all three are found to be wanting. ESUBs must be updated immediately on discovery of lift failures. As regards communication via the website, given that passengers may undertake tube journeys on a daily basis, perhaps several times a day, it is impractical for the defendant to rely on the website to comply with its obligations because it is impracticable for users to consult the website before every journey. What is required is a combination of these mechanisms. For wheelchair and pushchair users, the practical solution is to provide some further information at the point of access at the 12 stations with step-free access in Zone 1. To the extent that the defendant is concerned that whiteboards employed to this purpose aren’t easily kept updated, all that needs to happen is to say that there has been an incident notified, please check the website or ESUB before traveling further. If adopted, this procedure would alleviate problems for the traveling public, and would not in any way place an unreasonable burden on defendant’s resources.

The judge also made the point that I am clearly more interested in the point of principle than in damages.

Doug’s comment

It’s an indictment in itself that it took 2+ years in court to reach this point. The circumstances of both incidents speak for themselves. TfL personnel’s sloppy lack of adherence to those procedures and standards designed to minimise disabled people’s inconvenience is shameful and unacceptable; and I am amazed and disturbed that TfL would spend so long, and so much money, fighting to defend such behaviour.

TfL have clear procedures as to what they can and should do to warn disabled people about lift failures. Procedures that they didn’t follow at two key step-free interchanges – King’s Cross (the busiest station on the Underground) and Westminster (right next to the houses of Parliament.) If they don’t follow them there, then what chance have we that they will follow them elsewhere?

TfL refused my multiple offers to settle out of court, stating:

Previous indications were that London Underground Limited (LUL) was very unlikely to offer any money, money having been paid in the past without stopping claims (LUL of course recognises that you are entitled to pursue your legal rights, while it may take a different view as to whether they have in fact been infringed); I have no reason to suppose that this view would have changed. Further, while LUL believes that (putting it broadly) it strives to make things better for disabled users of its services, there is no sensible way LUL can guarantee that, with the best will in the world, it will never slip up in future.

I had concerns about TfL’s adherence to previous agreements:

I am always open to discussion. My issue is that in response to previous such discussions, London Underground made promises / took actions which they didn’t keep up. Take, for example, the Tube accessibility update guidance London Underground composed in 2011, following out of court discussion with me.
So whilst I am prepared to take part in potential out-of-court action, I do need to have some form of assurance that I won’t be re-inventing the wheel.

I am really sad that TfL spent so much time, money and other resources fighting this indefensible discrimination case.

I very much hope that in future they adhere properly to suitable procedures for disseminating information and taking action when lifts break, such that other disabled people don’t go through what I did.