Paulley: An everyday step?

Catherine Casserley

Sally Robertson

Catherine Casserley, junior counsel in the case, and Sally Robertson consider the implications of the Supreme Court decision in Paulley v First Group.

On 24 February 2012, Doug Paulley tried to do something most of us would not think twice about. He went to catch a bus. He wanted to get from Wetherby to Leeds to catch a train. The single wheelchair space was occupied, not by another wheelchair user, but by a pushchair. The bus driver asked the owner to move but did nothing more when she refused. Mr Paulley was unable to travel on that bus, so missed his train.

The resulting court case against the bus company saw the Supreme Court consider for the first time, in detail, the non-employment provisions of the Equality Act 2010. At issue in Paulley v First Group was whether the duty to make reasonable adjustments required the bus company to do more than simply ask the pushchair owner to move.

In Leeds County Court at first instance, Mr Paulley was successful in his claim of discrimination because of the failure to make reasonable adjustments. The claim was predicated on a variety of adjustments being made so as to result in a culture shift for all concerned. The Recorder took what might be described as a progressive approach to the duty and its impact when he found in favour of Mr Paulley. Two passages in his judgment, on which much attention was focused at the subsequent appeal hearings, were indicative of his approach.

The first, in paragraph [10], stated as follows:

“It became apparent as the hearing proceeded that the real adjustment alleged on behalf of the Claimant, and which the adjustments referred to above were all part of, was that the practice of “first come first served” or even that the wheelchair user should have “priority” over any other passenger, with a buggy or not, for the use of the wheelchair space (but as set out above, only following a request) did not give sufficient protection to the wheelchair user allowing, as it did, the non-wheelchair user to decide whether to agree to move. What was required 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. To that extent 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 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.”

And, at paragraph [21], :

“In my judgment there is little doubt that had the practice suggested by the Claimant been in force on 24th 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. The practice suggested by the Claimant, namely that the system of priority given to wheelchair users should be enforced as a matter not of request, to any non-disabled user of the wheelchair space, but of requirement is, to my mind, a reasonable one. It could be incorporated into their conditions of carriage so that any non-disabled non-wheelchair using passenger could be obliged to leave the wheelchair 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 the 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 which Parliament has chosen to give to disabled wheelchair users and not to non-disabled mothers with buggies…”

The Recorder, however, declined to award injunctive relief. Instead, he said at paragraph [25]:

“As for injunctive relief, I am not prepared to make any order at this time. I intend to adjourn the application for injunctive relief to await argument, if necessary, in due course following directions given by the court. I do this for one simple reason. I expect First Group PLC to take on board the lessons to be learned from this judgment and to adapt its practices, in whichever way it considers appropriate, having regard to the obligation to meet its responsibilities under the Equality Act 2010 and commercial considerations. I believe that the Defendant is, in the first instance, the best person to decide how to put the lessons to be learned into practice. I shall therefore adjourn that aspect of the remedy in this case for 6 months, a period which in my view is ample, to see whether and what steps are taken.

The Defendant, appointing a new legal team, appealed to the Court of Appeal on a number of grounds, including that the Recorder had gone too far in holding that it would be a reasonable adjustment to require anyone occupying the wheelchair space to vacate that space should a wheelchair user require it.  The appeal was resisted on the basis of upholding the Recorder’s judgment. The Court of Appeal upheld the appeal and Mr Paulley appealed to the Supreme Court.

There was just one issue for the Supreme Court to determine: was FirstGroup in breach of the Equality Act 2010. The court was unanimous in finding that First Group plc had breached the Equality Act 2010 in that they had not done enough to secure the wheelchair space for wheelchair users i.e in making reasonable adjustments for disabled people.

A clash of rights?

There was an acknowledgement including by the majority that the space on the bus, having been designated for wheelchair users, was primarily intended for that use. But ultimately it wasn’t a case of the rights of one user succeeding over the rights of another: it was the perceived conflict that this would create that led to the decision. Further, the majority judgments were not simply about the wheelchair user versus the buggy. The rights of others who might require the space was a consideration, particularly if they were themselves disabled – see Lord Neuberger at paragraph [48], for example (it should be noted that though the court had been addressed by the Appellant on the burden of proof and its shifting to the Respondent, this was not addressed in the judgments).

Various scenarios had been put before the court by the Respondent (scenarios that had not been put before the Recorder at first instance) of people who may have a legitimate need of the space or who would otherwise consider that they could not “reasonably or readily” vacate the space (the language of the conduct regulations, which the majority thought relevant).   The prime consideration, as expressed in the lead judgment, appeared to be the potential for conflict, and, in Lord Neuberger’s judgment, violence – mentioned twice in quick succession, at paragraphs [51] and [53]. This of course is to ignore the effect of any awareness or educative campaign that a service provider might run in order to accompany any change and one which it is arguable that the Recorder’s judgment had envisaged happening to secure the requisite culture shift.

The minority judgments approached the situation very differently.   Lady Hale was clear in her view that the obligations owed to disabled people were different to those owed to others. Lady Hale’s statement echoed that of the Recorder when she said that “service providers owe positive duties towards disabled people, including wheelchair users, which they do not owe to other members of the travelling public, including parents travelling with small children in baby buggies or other people travelling with bulky luggage.”[100]. Lord Clarke concurred with her [157]. Lord Kerr would not accept without supporting evidence that a stipulation that a passenger was required to move would lead to confrontation or delay [135]. Both Lord Clarke and Lady Hale also thought that disruption and confrontation would be unlikely had passengers been made aware of who had priority [101 – 102, 157].

The historical context

So why in 2012 was Mr Paulley unable to do something most people take for granted? An exhortation to ‘do more’ seems to lack teeth. From a practical perspective, very little seems to have changed despite international and domestic developments in disability rights.

Over 40 years ago, on 9 December 1975, the UN General Assembly adopted the Declaration of the Rights of Disabled Persons. It emphasized that all disabled people:

“have the same fundamental rights as their fellow-citizens of the same age, which implies first and foremost the right to enjoy a decent life, as normal and full as possible.”

Internationally, the UN continued to work to help make those rights effective. 1981 saw the International Year of Disabled People. In 1982, the World Programme of Action concerning Disabled Persons restructured disability policy into the trinity of prevention, rehabilitation and equalization of opportunities. The focus was on removing societal barriers to full participation by people with disabilities. The UN Decade of Disabled Persons (1983-1992) followed. The UN’s adoption in 1993 of the Standard Rules on Equalization of Opportunities for Persons with Disabilities is seen as a major outcome of the Decade.

Against that backdrop, the domestic experience is different. As the late Professor Peter Townsend commented in the Disability Rights Handbook for 1981:

“There can be few other governments of the world whose preparation for the IYDP has included cuts in benefits, services and employment for disabled people.”

Using public transport is part of ordinary life. Yet back in January 1995, the Government White Paper robustly entitled Ending Discrimination Against Disabled People (Cmnd 2729) specifically excluded transport vehicles from the protection against discrimination in goods and services introduced by Part 3 of what would become the Disability Discrimination Act 1995. It took ten years for that exclusion to be repealed. Even then full compliance with the access requirements for vehicles that are contained in the accessibility regulations (a separate regime from the discrimination provisions) is not due until 2020.

One little known casualty of Brexit may well be the right to transport found in Article 9 of Regulation (EU) No 181/2011. The UK has made full use of the available exceptions. In particular, the UK has deferred until 1 March 2018 the Article 16 requirement that bus and coach drivers undertake disability awareness training (though the Paulley judgment means that companies would be well advised in any event to ensure such training).

Given successive government’s failures to remove or mitigate barriers to travel faced by disabled people daily, Paulley can only be of help.

Furthermore, from a legal perspective the Supreme Court’s judgment in Paulley represents a sea change.

Contrast the approach and reasoning with that in London Borough of Lewisham v Malcolm back in 2008. In Malcolm, the narrow construction that ended the scope for disability-related discrimination claims was chosen explicitly to protect the rights of landlords. As Lord Neuberger put it:

“where the wider construction would involve private rights being taken away without compensation, potentially in circumstances which could reasonably be regarded as extraordinary and positively penal, the policy arguments appear to me to point in favour of the narrower construction.” [148]

The purpose of the Disability Discrimination Act was seen as being of lesser importance.

Since the Equality Act 2010 reversed Malcolm, there has been increasing recognition of the strength of the extra protection to be afforded to disabled people.

In Aster Communities Ltd v Akerman-Livingstone, for example, another case in the context of disability discrimination by a landlord, Lord Neuberger described the protection of s35(1)(b) of the Equality Act as “an extra, and a more specific, stronger right afforded to disabled occupiers over and above’ Article 8 of the Human Rights Act.

Despite the focus on potential conflict in Paulley, it was not conclusive. A difficulty in securing reasonable adjustments in the face of competing demands was excluded as a factor when deciding whether a particular adjustment was reasonable. As Lord Toulson put it:

“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….. The concept of ‘reasonable adjustments’ … is intensely practical. Much human behaviour is governed by expectation and convention rather than legal enforcement.” [83]

What next?

So where does all this leave the rights of disabled people and what are the practical implications of the judgment?

It would be a mistake to say that the judgment in this case has not moved things on (excuse the pun). Whilst there was no finding of discrimination (hence no damages) there was a unanimous finding of breach of the Act. The Respondent had not done enough. In different circumstances – or indeed if there had been express findings of fact – there could have been a finding of discrimination, with the damages and, perhaps more importantly in non-employment cases, injunctive relief that can flow from such a finding.

Bus – and indeed other service providers with spaces reserved for wheelchair users – will need to revisit their policies to ensure that they advise drivers of the steps that they need to take if the space is occupied. They will need to do more than simply ask someone to move from the space; they will need to pressurise them to do so, ideally by saying that they are required to move. And if that person does not, then they may need to stop the bus from moving on to give that person time to move. Assistance with, for example, folding the pushchair may also need to be given. New policies will also require training.

It is likely, given the publicity generated by the case, that there will be an increase in cases brought by disabled people. We have already seen a number of these. This is a complicated area of law though and it needs to be properly argued – the Respondent in Paulley attempted to rely on Black v Arriva North East Ltd [2013] EqLR 558 where essentially the same policy as in the Paulley case had been held to be lawful. However that case was poorly argued and defended and as a result the judgment was full of errors. It was of no assistance to the Respondent in the end. It is important for those using the Equality Act 2010, particularly relying on the complex disability provisions, to seek the best possible assistance – something that Cloisters is adept at.