Wheelchairs v Buggies and the duty to make reasonable adjustments

January 20, 2017

On Wednesday the Supreme Court handed down its much anticipated decision in Paulley v FirstGroup Plc [2017] UKSC 4. Mr Paulley is a wheelchair user who brought a claim against the bus company FirstGroup for breach of the duty to make reasonable adjustments contained in ss.20 and 21 of the Equality Act 2010, which applies to public service providers by virtue of s.29 of the same Act. He had been unable to board a bus when a woman with a sleeping child in a buggy had refused the driver’s request that she move elsewhere. He had to wait another 20 minutes for a bus, missed his connecting train and arrived at his destination one hour late. At first instance the Recorder allowed his claim and awarded him £5,500 in damages. The Court of Appeal unanimously allowed FirstGroup’s appeal. The matter came before the Supreme Court.

All seven members held that the bus company, FirstGroup, had breached the duty to make reasonable adjustments by applying a policy by which drivers simply requested that a passenger vacate the designated wheelchair area, but not requiring drivers to take any further action if that request was refused. The application of that policy placed Mr Paulley at a substantial disadvantage compared to non-wheelchair users and reasonable steps should therefore have been taken to adjust that policy to ameliorate the disadvantage.

The Court was, however, divided on the extent to which the bus company could be expected to adjust their policy. The majority (Lords Neuberger, Reed, Toulson and Sumption) did not advocate an approach requiring the bus company to adopt either an absolute rule that any non-wheelchair user must vacate a wheelchair space, or even a more qualified rule that any non-wheelchair user must vacate a space if it is reasonable, and implemented through mandatory enforcement.

In reaching that conclusion, the majority placed considerable emphasis on the potential for adjustments of that extent to

(a) cause inconvenience to other passengers, for example if the rule required them to disembark;

(b) require the driver to make difficult judgments as (s)he would be required to assess the reasonableness of the refusal; and

(c) provoke incendiary situations.

They also emphasised the difficulty in enforcing adjustments of this nature, given that there was nothing in the criminal law that required non-wheelchair users to give up their seat, and highlighted that there were many situations in which such a requirement would be unreasonable (for example if the person in occupation was themselves disabled or otherwise vulnerable).

The majority nevertheless found (albeit that Lord Sumption appeared reluctant to reach this conclusion) that FirstGroup’s “request but no more” approach did not go far enough and that it would be a reasonable adjustment for a driver (in circumstances where it appears that a refusal to move is unreasonable) to take some further step to pressurise the non-wheelchair user to vacate the space. For example, the driver could have rephrased the request as a requirement or refused to move on for a few minutes. What would be reasonable would depend on the particular circumstances.

However, the majority refused to reinstate the Recorder’s order that the company pay Mr Paulley damages. As well as some procedural issues regarding how the case was put in the Court of Appeal, the majority found that there was no finding in the Recorder’s first-instance judgment that had such an adjustment been applied by FirstGroup that the woman occupying the space would have moved. There was thus “no satisfactory basis” upon which the Court could conclude that there was a “real prospect” that the adjustment proposed would have resulted in Mr Paulley not being disadvantaged in the way that he was [60].

The minority (Lady Hale and Lords Kerr and Clarke) advocated a more robust approach to the making of reasonable adjustments, and doubted whether inconvenience to other passengers, potential unpleasantness or customer relations, or even difficulty with enforcement could be said to “condemn as unreasonable” a policy which “gives drivers the responsibility of pointing out to a passenger obstinately refusing to move that it is the policy of the bus company…that they must vacate the wheelchair space” [129]. In doing so they emphasised that disabled people have been afforded special protection by the Equality Act and that that service providers owe them positive duties which they simply do not owe to other members of the travelling public, including parents with small children. They would have reinstated the Recorder’s order that FirstGroup pay Mr Paulley damages, with Lord Kerr vehemently disagreeing with the majority and stating that there was an “inescapable inference” that had the driver taken the steps that even the majority advocated, “there was at least a real prospect that Mr Paulley would not have been prevented from travelling on the bus”.

The judgment serves as a reminder of the importance of the duty to make reasonable adjustments for disabled people. The divisions of the court only serve to remind those subject to the duty (including employers, housing providers, service providers and educational establishments) that any assertion that a prospective adjustment to its policies or practices for disabled people is unreasonable and therefore beyond the scope of the duty will be subject to careful scrutiny.

The judgment is available here..