We Won the case against Firstbus

The Supreme Court judgment in “Paulley vs FirstGroup” has been handed down this morning.

I am not a lawyer and the following is my interpretation of 92 pages of judgment having had just a few hours to read it! I make no warranty that it is legally correct. You should form your own view and seek legal advice if intending on taking action prompted by this case.

We won. 

All seven Supreme Court Justices were unanimous in their decision that Firstbus could and should have done more to make sure that the wheelchair space was available to me. All seven found in “my” favour. All seven Supreme Court justices say that Firstbus could and should do more to ensure that wheelchair spaces are available to disabled people who need them.

This has consequences for Firstbus, for the bus industry, public transport and other analogous situations.

The Justices disagreed amongst themselves on some details, including on compensation. I haven’t been awarded any compensation, as four of the Justices have ruled that I couldn’t prove that the person occupying the wheelchair space would have moved if Firstbus had used a more coercive attitude. However, the money isn’t important. It would have been a nice extra benefit of course, and I wouldn’t have refused it; but it’s irrelevant to the purpose that I / we brought this case:

Disabled people should be able to travel on public transport without unreasonable restriction or difficulty, including in the wheelchair space.

Bus companies must make efforts to ensure this is possible.

That is the reason my case has received such incredible support from a lot of disabled people, family, friends, lawyers, Transport for All and allies. I am incredibly grateful. Without the support of so many people in so many ways, this case would never have got as far as it has. It sounds trite to say “this case is as much theirs as it is mine” but it’s true! Special mentions go to the stalwarts at Transport for All, Robin Allen QC and Cathy Casserley of Cloisters Chambers, Chris Fry and his team from Unity Law, Natalie Rodgers from Scala, the Equality and Human Rights Commission, so many disabled people and allies, and especially my family.

The fateful bus trip that sparked this action 5 years ago was for lunch with my parents. They have been an incredible support. I am so lucky. They were at the Court of Appeal hearing, and at the Supreme Court hearing, and my Dad is with me today. I have my activist slant as a result of their influence. Very sadly, Mum died suddenly in August 2016. She can’t be here in person, but I have no doubt she is here in spirit, and amongst all the other phenomenal people who have given such support, I’d like to pay tribute to her. God bless you, Mum.

The case

This case was NOT about pitting wheelchair users against pushchair users. I am sympathetic to the difficulties pushchair users face. I believe strongly that public transport should be made as accessible and easy as possible for everybody to use. It was definitely NOT about chucking people off the bus.

It was about, to quote the Supreme Court summary,

The reasonable adjustments which a bus company is required to make to accommodate disabled wheelchair users.

So: what does this mean in practice, for disabled people when they’re stopped from getting on a bus because the wheelchair space is occupied by a non-disabled person?

• Bus companies must make it very clear to passengers who may wish to occupy the wheelchair space that the space is there for disabled people. The intent is to proactively ensure that non-disabled people intending to occupy the wheelchair space are in no doubt that they are required to move should a disabled person need the space. In time, this should hopefully make such conflicts less frequent.
• If a disabled person needs the space and it’s occupied by a non-disabled person, the driver must ask the person to move. (This has always been the case and was never in dispute, despite public perception to the contrary.)
• If the person refuses to move, the driver must assess whether there’s some exceptional reason they can’t move. (There are rare occasions where it isn’t appropriate; for example some disabled people not in a wheelchair may have an impairment that isn’t obvious and have genuine need for the space, or some of the more outlandish arguments advanced by First e.g. what if it’s night in the middle of the Yorkshire moors and a parent with a pushchair that doesn’t fold would be forced to get off…)
• The driver should insist that the person move. He or she should make it quite clear that the person is required to move. The driver should be quite forceful if necessary,  stating that it is company policy that the person must move. The driver should be firm and if necessary, peremptory. The person must be left in no doubt that the driver and the company requires them to move.
• Should the person not move, the driver should refuse to move the bus for a few minutes until they do.

What should disabled people do if they are prevented from boarding a bus because a non-wheelchair user is occupying the space?

• Tell the driver that you require him or her to ensure that the person in the wheelchair space genuinely cannot be readily moved.
• Insist the driver explains why they believe that the space cannot be vacated for you. It is the driver’s duty to make their OWN assessment. (This question is important: the answer will be key to any subsequent disability discrimination claim over the incident.)
• If you still haven’t been allowed to get on and you think the reasons given don’t hold water, or if the driver doesn’t comply with his/her duty, take down all details and contact a solicitor (for example, Unity Law.)

The Supreme Court Justices are clear that the driver has an obligation to use his or her own judgment in such situations. He or she can’t simply accept a passenger’s refusal to move from the wheelchair space; the driver is required to make their own assessment, and if he/she believes that the person in the space is illegitimate in refusing to move, he/she should make the person aware in no uncertain terms that they are required to move, including by refusing to move the bus for several minutes.

I have a lot of respect for bus drivers. I couldn’t do it; I was a rubbish driver anyway, but more to the point, I would struggle with the duty to deal with people who don’t follow the rules. Bus drivers already have to deal with people smoking, eating the infamous kebab, being abusive and so on. They have to exercise judgment on how to deal with incidents all the time. The Court judgment is clear that the driver also has to exercise judgment over whether a person refusing to give up the wheelchair space for a disabled person to embark has a genuine and exceptional reason why they can’t vacate it. The Justices said that they did not anticipate that this would be difficult to determine in most cases, and even if it is, the driver can’t avoid their obligation to make his/her own decision. The driver should be quite forceful in insisting they move if necessary.

Reaction

I am very happy with this judgment, which has affirmed for once and for all that Firstbus’s “first come first served” policy for occupancy of the wheelchair space is inadequate, that their policy and their actions are illegal and that they, and the rest of the public transport industry, must change.

The judgment is 92 pages long. As a tl;dr here are some quotes I find particularly apposite:

Lord Neuberger: “I have concluded that it was not enough for FirstGroup to instruct its drivers simply to request non-wheelchair users to vacate the space, and to do nothing further if the request was rejected.” “it would be unjustifiable for a bus-operating company to have a policy which does not require some further step of the bus driver in any circumstances.” “I therefore find it hard to see how it would 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.” “there will undoubtedly be cases where the sort of ‘good practice’ which he (a Court of Appeal judge) suggested … could be expected to provide positive results whereas FirstGroup’s current, more pallid policy would not do so. When a non-wheelchair user is unreasonably refusing to move from the space … a more forceful repetition of an initial unsuccessful unsuccessful request in the form of a requirement (coupled with a refusal to drive on for several minutes) may well persuade the unreasonable non-wheelchair user to vacate the space.”

Baroness Hale: “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.” … “In my view, therefore, the answer to the single issue agreed between the parties is ‘yes’: the Recorder was correct to conclude that FirstGroup was in breach of the 2010 Act.”
“The Court of Appeal, in my view, fell into the trap of assuming that the claims of disabled travellers were no different from the claims of any other person wishing to use the buses. They are not. Disabled people are, for very good reasons, a special case.” “At the time of the incident in question, the policy was that wheelchair users had no priority over buggies and this infected both the content of the notices and the approach to enforcement.” “It is obviously reasonable to expect bus operators to do more than FirstGroup did in this case.” “A great deal of argument was directed towards how a priority policy might be enforced against recalcitrant passengers. In my view this is something of a red herring. … The possibility that some people will be disobedient should not deter the bus company from making it clear what the rules are and doing its best to people to obey. There are many steps short of physically removing the person from the bus which can be taken, including delaying the departure of the bus until the rule is obeyed (which I have observed being highly effective against rowdy behaviour on an underground train.)” “This is no more unreasonable than requiring passengers to refrain from eating messy or smelly foods or drinking alcohol.”

Lord Kerr: “Wheelchair users face formidable difficulties in making use of facilities that the able-bodied take for granted. If inconvenience to the traveling public because of delay is the price which has to be paid to allow those who depend on a wheelchair to make maximum use of the transport system which is made available to all, I do not consider that this is, in any way, unreasonable.”

“What is a reasonable adjustment must be determined according to the context in which the assessment is made. Here the context is the elimination of discrimination against disabled people. That will require, in appropriate circumstances, able-bodied people to accept restrictions that they may find irksome or inconvenient. It will demand of those who police or enforce the adjustments that they be ready to make difficult decisions and that they be prepared to confront and require of those who may not wish to, to suppress selfish inclinations.” “these are not reasons to condemn as unreasonable a change to the PCP (provision, criteria or practice) which gives drivers the responsibility of pointing out to a passenger obstinately refusing to move that it is the policy of the bus company (and, when the adjustment in them has been made, one of the conditions of carriage) that they must vacate the wheelchair space.” … “A person is surely more likely to vacate a space if he or she is aware that they will be required to do so rather than if they are merely going to be asked to move.” “I consider that, although passengers are not expressly required to obey every instruction from the driver, a refusal to leave a wheelchair space when instructed to do so in order that it be made available for a wheelchair user would be unlawful.” “A passenger who is ‘readily and reasonably’ able to move from a wheelchair space commits an offence under regulation 6(1)(b) if his refusal prevents a wheelchair user being allowed to board the bus.”(The driver) has to decide if the persons occupying the space can ‘readily and reasonably’ move from it.”

Lord Clarke: “I do not think that it was sufficent 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.” “I would hold that the company was in breach of a duty 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.”

“Disabled people are a special case. Their needs are to be treated from those of others, including those with buggies. … It should have been made clear to passsengers that wheelchair users have priority over others, who should have been required to vacate the wheelchair space. I agree with Lady Hale that disruption and confrontation would be unlikely.” … “I am also of the view that if, contrary to my view of the facts of this case, a buggy cannot be folded down, the PCP should have to be adjusted to make it clear that, if necessary to enable a wheelchair user to use the wheelchair space, the buggy user (and not the wheelchair user) must get off the bus. Only in this way will the statutory policy of priority for wheelchair users be carried out.” “I also would answer the question posed, namely whether the company was in breach of the 2010 Act in the affirmative.”

Lord Toulson said that the so-called Conduct Regulations require drivers to allow wheelchair users on if any person occupying the wheelchair space could reasonably move elsewhere, even if they illegitimately refuse. The Conduct Regulations also mandate that the driver ensure that the wheelchair (and presumably its occupant!) is correctly and safely positioned in the wheelchair space before they can start driving. In theory, therefore, if somebody refuses to vacate the wheelchair space, the driver is obliged to let the wheelchair user on the bus and then to refuse to move the bus until the wheelchair space is relinquished!