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Thread: Court of Appeal decision- disabled buses

  1. #1
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    Court of Appeal decision- disabled buses

    A very bad day in court. If a person with a buggy/shopping refuses to vacate the designated disabled space, nothing can be done. What's next, disabled parking spaces? Where will it end?
    new legislation needed very soon.

  2. #2
    Senior Member nukecad's Avatar
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    Yes, saw that reported on the BBC today; strange decision by the Appeal Court judges.

    Other disability / benefits related news on the BBC today:
    • Closure of the Independent Living Fund ruled lawful by the high court.
    • Cross part group of MP's recommend end of delays and faster payment of benefits.
    • MP caught playing 'Candy Crush Saga' on his tablet during Works and Pensions Committee hearing.
    • Chancellor says that benefits will have to be cut further because it is "a price that works for our country".

  3. #3
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    The judgment in FirstGroup plc v Paulley [2014] EWCA Civ 1573 is now available on judiciary.gov.uk.

    I encourage people to read the judgment, as it is mostly very accessible to the lay person. If any of it doesn't make sense and you want an explanation, please say so and I will try to explain. The convention in modern legal judgments with numbered paragraphs is to refer to the judgment by paragraph number, so if you are referring to paragraph 31 you write "In [31], ...".


    In the appeal courts, there is more than one judge. Modern practice is to use an odd number of judges in an attempt to get a majority decision - three judges are usual in the Court of Appeal and five judges are the norm in the Supreme Court.


    Each judge delivers their own judgment, though sometimes you get a judgment along the lines of "I have had the privilege of reading in draft the judgment of my learned friend Bloggs LJ. I agree and would allow this appeal."

    The practice in the courts of England and Wales is that it is the majority on each point in issue that is decisive on the point, also any judicial commentary on a matter not crucial for the decision is an observation with no legal force. In Paulley, the three judges pretty much agreed with each other, though Underhill and Arden LJJ disagreed with Lewison LJ on what leads to substantial disadvantage (see Arden LJ at [73] for an explanation). That said, you need to read the three judgments in order, as Lewison LJ, delivering the first judgment, goes into the greatest detail on some key points.


    The three judges were hugely sympathetic to Mr Paulley and to the position wheelchair users sometimes find themselves in, but could find no way to endorse a meaningful mandatory wheelchair priority system, on the basis that there was nothing the bus driver could do within the current law. The judges found that there was no power to compel a passenger to vacate the wheelchair space under the current conduct regulations applying to bus drivers, also that putting someone off the bus for refusal to vacate the wheelchair space before reaching their destination may well breach the Unfair Terms in Consumer Contracts Regulations 1999.

    Any issue where there is a conflict over rights rarely finds a neat legal solution. My personal feeling is that the judges did an excellent job with the law that we have - as Arden LJ noted at [85], it will likely require a change in the law for a bus driver to have the power to require the wheelchair space is vacated, which is something only Parliament can do. In truth, I prefer one of her alternative solutions - changes in the design of buses. If anything, the requirement for wheelchair spaces and ramps has been too successful, with there sometimes being more demand from the users of wheeled mobility aids and baby buggies than can be met.

    I also hope that Mr Paulley appeals this to the Supreme Court, as his team have suggested, in order to obtain a definitive ruling on the current state of the law. I know the solicitor who represented Mr Paulley in the Court of Appeal stage of his case, and believe he will do all he can to take this forwards. Whether there is an appeal to the Supreme Court depends on there being an arguable legal case for a different outcome, also on the availability of funding.

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    Quote Originally Posted by nukecad View Post
    Closure of the Independent Living Fund ruled lawful by the high court.
    A side issue to this thread, but, I believe, an important one to pick up.


    The challenge to the closure of the ILF was brought via a process known as judicial review. Judicial review cannot challenge decisions on policy, which are reserved to Parliament or those delegated by Parliament - in this case the relevant minister. What judicial review can challenge is the lawfulness of the process used to make the decision.

    An earlier decision to close the ILF was quashed after the courts ruled, in essence, that the minister did not possess sufficient information to make the decision. The government consulted again and remade the decision to close the ILF. It was unlikely the government would make the same mistakes again, and so it proved. Once the judge had determined that the decision was a lawful exercise of the discretion granted to the minister, the judge had no alternative to declining judicial review.

    It is not the court's job to express a view on the policy decision or its ramifications - for the court to attempt to intervene in the political process would be a breach of the doctrines of separation of powers and Parliamentary sovereignty.

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    Quote Originally Posted by RaspberryRipple View Post
    Oh I am very sorry to hear this ridiculous ruling. After all the struggles that disabled people have had over getting accessable bus in the first place, this truly sickens me. It's difficult enough to get around on public transport without the worry over buggys and stroppy parents.

    What message does this give to society about the importance of disabled people? What is the point of accessable bus stops, ramps, lifts, training etc if we then get forced away by an unruly buggy welding parent? Where is is disability discrimination act when we need it? I plan to take this ruling further and fight for a U turn on the ruling.
    If you read the judgments, the judges did try to balance the competing interests carefully. The first judgment goes into some detail about the practical difficulties with a "wheelchair always wins" policy. The judges also made some very positive and well informed comments about disability and the problems faced by wheelchair users.


    There's no such thing as the Disability Discrimination Acts any more. All their provisions, together with some new ones on disability, were folded into the Equality Act 2010, which was the legal basis for Mr Paulley's claim.


    You can do nothing to take this decision further from a legal perspective, as you have no standing in the matter, though I don't supposed that is what you were meaning.

    If there are legal grounds for a further challenge, I expect that challenge will be made in the Supreme Court. If that is the case, hopefully the Equality and Human Rights Commission will continue to fund Mr Paulley's lawyers, as they did in the Court of Appeal.

    There are awareness matters and potentially political matters requiring attention following the Court of Appeal judgment, where I'm sure any help is welcome.

  6. #6
    kenjan
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    Surely, after this ruling, the signs saying that the spaces are reserved for wheelchairs have to be removed now as they are meaningless. Consequently, we are back to square one regarding disab!ed access on public transport. I do believe, however, that the majority of people WOULD do their best to accommodate a wheelchair user.

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    Answering one general point for information only.

    It looks like the law applies to England and Wales.
    There are three main legal systems in the UK: Scotland, Northern Ireland and England/Wales. The difference between the systems depends on the area of law involved. My legal training and experience is purely on the England/Wales legal system, other than a small amount of study I had to do on the key differences with the Scottish legal system.


    In this case, the Equality Act 2010 applies to Scotland and England/Wales, but the events happened in England which is why the appeal was heard at the Court of Appeal in London under the England/Wales legal system. The case would have been in the Court of Session in Edinburgh at the stage that has just completed if it was a Scottish case.

    The other law mentioned in the judgment, the Unfair Terms in Consumer Contracts Regulations 1999 is, in essence, a piece of EU law (I'll spare the technical details about how EU law has effect in the UK). In effect, this law applies to the entire UK.


    As the law is the same in Scotland, the Paulley judgment would have what is known as persuasive authority in Scotland. It isn't formally binding precedent, but a Scottish court is likely to follow it unless there is good reason to rule otherwise.

  8. #8
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    Quote Originally Posted by kenjan View Post
    Surely, after this ruling, the signs saying that the spaces are reserved for wheelchairs have to be removed now as they are meaningless. Consequently, we are back to square one regarding disab!ed access on public transport. I do believe, however, that the majority of people WOULD do their best to accommodate a wheelchair user.
    Quite the opposite. A sign saying "Please give up this seat for a wheelchair user" is legally required if there is a tip-up seat and the wheelchair space must be marked with an international disabled symbol (see [11] of the judgment).


    Lord Justice Lewison started the judgment with the following statement (at [1]):
    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.

    Lord Justice Underhill spoke positively of the wheelchair priority campaign run by Transport for London at [69].


    Lady Justice Arden expressed her views (which are non-binding - in a legal sense they are obiter dicta) that bus companies must take proactive steps in relation to the wheelchair space not being free when a wheelchair user wants to get on (at [75]) but noted that the space may be in demand from other users, some of whom may have no other safe place to travel (at [76]). She concurred with the other two judges that the law, as it stands, does not require bus companies to operate an absolute wheelchair priority rule and that the enforcement powers available prevent conditions of carriage being used to force other users to vacate the wheelchair space (at [77]-[78]). However, she concluded that the requirement to provide reasonable adjustments would not be met by providing a wheelchair space on a first come first served basis with no attempts to bring about wheelchair priority (at [79]).

    She went on to state that, in her view, drivers should have training about strategies to bring about wheelchair priority (at [80]) and should consider reasonable design changes that gives alternative provision for buggies (at [82]).



    In my opinion, these are not three out of touch judges. They showed considerable insight into the issues and, I believe, were doing their best to uphold accessibility. What the judges cannot do is change the law. Parliament has not explicitly given wheelchair users absolute priority over the wheelchair space and the judgment concludes unanimously that there is no way for bus companies to enforce wheelchair priority under the law as it stands.

    Ultimately, as you say, most people will vacate the wheelchair space when requested - and the signage requesting wheelchair priority assists in that.

  9. #9
    Why should being disabled be more important than someone else needing the bus? Surely asking for someone else to get off the bus is just as selfish as someone refusing to move. Everyone always views their needs as more important unfortunately and if someone is left off the bus surely it's just as bad if you are disabled or a parent and child. Obviously it's a completely different ball game if they can just move to another part of the bus that's just common courtesy.

  10. #10
    Senior Member nukecad's Avatar
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    Jenwil did say that she was slightly joking.

    Panicking also has a point.

    For all you know that reticent young girl with the pram has just fled from an abusive relationship, she is scared to talk to anbody and is sat on the bus trying to ignore everything and be strong.
    She has had to flee to a strange town and has just forced herself to leave her smelly bedsit with her precious child and get on the bus to town because she has to get to the jobcentre by a certain time or she will have no money to feed her baby for the next two weeks because she is sanctioned. She is not going to move for anybody at the moment.

    Farfetched scenario?
    Unfortunatley not.

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