Buses, FirstbusComments Off on Buses Bill – Committee discussion about mandating priority for wheelchair users on buses
The Commons Buses Bill Committee today debated proposed amendments to the Buses Bill to ensure mandatorydisability awareness training for bus drivers, and to enforce priority for disabled people to use the wheelchair space on buses.
The Houses of Parliament have a serious security problem with their Parliament TV website which means I can’t embed the video here:
Parliament have not subtitled this video, but the record of the debate should be made available on Hansard and thus TheyWorkForYou.com tomorrow – I’ll link it when it’s published.
bus companies will have to do disability awareness training for their drivers come March next year
Andrew Jones MP has set up a small working group of people from bus companies and disabled people to look at the practicalities of implementing priority for disabled people in the wheelchair space, which will do its work over the summer
the two Labour MPs argued repeatedly, clearly and cogently for enforceable priority for disabled people for the wheelchair space, and for such to happen quickly.
The amendments were collectively withdrawn and/or voted down, on the basis that the changes asked for are either already in place or there are clear plans to make them happen, and because NC7 didn’t add anything to existing legislation.
Buses, FirstbusComments Off on Bus driver still not asking pushchair users to shift…
The basis of the Firstbus case was that the bus company must do more than get their drivers to just ask pushchair users to vacate the wheelchair space. All sides agreed from the very start that the bus driver must at least ask the non-disabled person(s) occupying the wheelchair space to make way for a wheelchair user. Now they have to “request and pressurise“.
Yet there are still examples of bus drivers refusing to ask people to move. I’ve already discussed a bus driver who refused to let a wheelchair user on even though the wheelchair space was free. Here’s a video showing a bus driver refusing to even ASK the people occupying the space to move so that his mother could get on in her wheelchair at the hospital bus-stop, where they had been visiting his father.
I’ve also received a large number of emails from people experiencing this. E.g.:
i’m in a wheelchair and the bus driver said i could not get on due to 2 pushchairs being on the bus there was space for the 2 pushchairs to go together and for me to go into the wheelchair space the bus driver still refused
It is shocking that even despite this ruling, Firstbus and other companies are not enforcing disabled people’s right to travel on the bus.
Some people argue that wheelchair users expecting pushchair users to vacate the wheelchair space are expecting special treatment,not equality, and being unreasonable. They advocate “first come first served” as fair.
The answer is that yes, we are expecting special treatment, and we’re not ashamed of that. We need special treatment to have any chance at accessing things which non-disabled people take for granted. This is because the built environment, services and societyisn’t set up with our access needs in mind. That’s why Parliament has made it a legal requirement that all service providers make reasonable adjustments. For all other “protected characteristics” (age, gender, race, religion, sexual orientation and so on) – the Equality Act “just” imposes the obligation not to discriminate. It only requires service providers to proactively do stuff for disabled people. This is to recognise the extra barriers that disabled people face on a day-to-day basis.
One of those adaptations is the wheelchair space on buses. NB: it’s a wheelchair space. It’s not an “everything” space; it’s not a “wheelchair, buggy and luggage” space, it’s not a “first come first served” space, it’s a wheelchair space. This is entirely clear throughout legislation and has never been in dispute at any point in “my” legal case or any other.
It’s designed around wheelchairs, for wheelchair safety (as far as I know pushchair safety on buses has never been assessed, nor crash-tests of buggies or an approved design of buggy spaces, unlike for wheelchairs), wheelchair users’ ease of use and for wheelchair user’s comfort. It has to have signs in it saying it’s for wheelchair users. Passengers and their effects (buggies, luggage) are legally required to move from the wheelchair space if a disabled person needs it, unless there are extenuating circumstances (e.g. somebody giving birth on a bus) They are obliged to move under criminal law. Drivers are obliged to allow wheelchair users on, also under criminal law.
There is no law requiring drivers or bus companies to allow a person with a buggyon to a bus, or to allow them to occupy any space on the bus whatsoever.
Our QC put it well in Court:
“The case has in some parts being identified as being about competition between the rights of wheelchair uses, and travelers with children and buggies. But we say that is not the right way to view it.
“We do not suggest that parents traveling with buggies don’t have the need for assistance or to be taken into account.
“We do not suggest that bus companies shouldn’t consider about the general public as it is.
“What we say … is that we have a particular problem – Wheelchair users, Mr. Paulley in particular – and we have been given a particular solution. And we do object to the solution to other problems being grafted on in some way that undermines the strength of the solution which we say Parliament has given” (us.)
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.
So, people with buggies, I’m afraid it is not your space. It was wrong of bus companies to advertise buses as “buggy friendly” where there’s only a wheelchair space and no buggy space. It is doubly wrong of them to put buggy signs in wheelchair spaces. And whilst we’re generally happy to lend the space to others whenwe’re not using it, us disabled people (well, most of us anyway) object when you selfishly occupy the wheelchair space and refuseto return it to us when we need it.
Happily most parents and guardiansagree with us – as shown by Mumsnet – but there are a lot more pushchair users than wheelchair users…
If you (non-disabled people with buggies) want a space on buses, perhaps learn from us. This is how we got ours:
It took about 30 years for us to achieve ubiquitous wheelchair spaces on buses. Good luck with your campaign. We fully support you – after all, we want everybody to be able to travel, including parents with buggies (after all, many disabled people are parents!) and as easily and comfortably as possible.
But in the meantime, don’t discriminate against us by using the wheelchair spacewhenwe need it.
I met wheelchair user Kerdesan Gallardo after the Supreme Court verdict on Wednesday. She was very enthusiastic and supportive, and I was and am very grateful to her for her support outside the hearing.
When I got home, I was truly shocked to see what had happened to her on her way home. I stayed up late to upload news footage because I was so disturbed. What happened was truly unacceptable. I watched, shocked and open-mouthed, as a woman berated Kerdesan for asking that the EMPTY pushchair in the wheelchair space be folded so she could travel. (The two parents who owned the pushchair had gone upstairs, leaving the pushchair, empty, in the wheelchair space, and refused to move it!) The woman and another passenger then berated her further for “delaying the bus”!
You all watched news between wheelchair user and EMPTY Pram parked on the wheelchair user space. The owner of the EMPTY pram both parents they were there seating upstairs with their two children. They didn’t won’t to fold up their empty pram. The driver tells me to wait for next bus and I already waited 25minutes for this bus to arrive. I was Frozing cold and I am not well, and had long journey to go! I looked and there was a solutions for me to get on the same bus. I asked the driver to move the EMPTY to the side so that I can get on the bus. At that point I was approached by another rude woman passenger as she stands by the centre door of the bus she arguing me and abused me, the language she used on me was not acceptable. She wasn’t even the owner of EMPTY pram. She thinks that disabled people wheelchair user they don’t have right to go on buses. The rude woman passenger she was protecting EMPTY pram and in her Judgements the EMPTY pram has a Top Priority over me in the wheelchair user space. I am listening and reading everyone has different opinions expressed themselves how they feel. Thats obviously fine. Overall someone like me who cannot walk all. I have to use my wheelchair to move around and I have No choice I cannot fold up my wheelchair. All London buses they have only 1 wheelchair user space. I have no other choice
The parents with Pram/pushchairs they have more choices they can fold up their pram/pushchairs they can stay on bus continuing their journeys. This is what we call it equal rights for everyone. By the way I am also parent I got Two children and this is how I brought up my two preicuers children we bought a small and slim pram light weight and easy to fold up. I use 1 left hand pushing my baby pram and my right hand pushing and controling electric. And I can fold up my child’s pram with 1 hand too. All prams and pushchairs are designed to folding it up! But some mums they use their pram and pushchairs like it’s their wardrobes. If the EMPTY Pram cannot give up the priority for wheelchair user space on the bus I wish to get in. Then what about the bus comes with another prams and pushchair and baby is inside the pram or pushchairs. What can the wheelchair user do?
ITV News also covered this incident:
I’m still absolutely mortified that this happened to Kerdesan. It’s especially ironic given she came to support “my” Court Case on the rights of wheelchair users for the wheelchair space on buses.
When people complain we’ve taken a bus company to court for our right to the wheelchair space, when people say we’re over the top or being unfair, please bear in mind the unchallenged, disgusting verbal abuse Kerdesan experienced.
I’m not responsible for the abuse, but I would still like to apologise profusely to Kerdesan for her horrific experience on the way home, and thank her (and all other supporters) for coming to support the case.
The change from request to require may be semantic, and the proof is in the pudding as it were. But this is particularly relevant as regards Arriva, because a very similar legal case against Arriva lost. I think that Arriva should apologise to the disabled people who it defeated in that case and compensate them handsomely, but that’s not the way the world works, sadly.
I defy Giles Fearnley, FirstBus or anybody else to identify the supposed Supreme Court finding that First Group “did not discriminate against Mr Paulley.”
Hint: it’s not in there.
What the Court did say is:
The view of this Court is that FirstGroup was in breach.
This case was specifically about whether or notFirstGroup discriminated against me, by failing to make sufficient adjustment to try to ensure that the wheelchair space was available to me, when I needed to travel that day in February 2012. It ruled on whether their policies and practices are discriminatory.
All seven judges found in my favour.
FirstGroup were found to be in breach of their duty to make such adjustments. As all agree, a failure to make such adjustments is discrimination, as specifically defined by the Equality Act 2010.
So how can FirstGroup, in all conscience, claim that the Supreme Court decided that FirstGroup didn’t discriminate against me?
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.
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 sevenfound 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.
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, Mumdied 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.
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 personneed 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 companyrequires 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 CourtJustices 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 movefrom 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.
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!
The Supreme Court suddenly have a very urgent, very hot political potato landed on the doorstep. The Brexit high court judgment has been referred for urgent consideration by the Supreme Court, who will put all of their current 11 justices on the case. This may well delay other Supreme Court business, including the Firstbus judgment.
If we aren’t notified of the imminent release of the judgment by Thursday 15th December, it won’t be out before Christmas.
The reasonable adjustments which a bus company is required to make to accommodate disabled wheelchair users.
The simple answer is: we don’t know.
My understanding is that the Supreme Court aim to get judgments out within 12 sitting weeks of the hearing. NB: the Court has a summer recess which doesn’t count, also this is only an aim and some judgments do take longer.
In our case there were 7 justices rather than the usual 5 so there is extra coordination required to write the judgment(s), also it is a case that has generated considerable public interest. Both are factors which may mean that the judgment could take longer.
We hope the judgment may be out in the Autumn, hopefully before Christmas, but ultimately we don’t know.
Judgments are released at 9.45am on Wednesdays when the court is sitting. The full text is put online and there’s a summary read out in court, also this is videod and may be watched live on the Supreme Court website, or after the session the recording is available on both the Supreme Court website and YouTube.
We are given notice of the judgment imminent release of the judgment one week in advance. The judgment is released to legal representatives 6 days beforehand.
Whilst legal reps will know the content 10 days in advance, I’m not allowed to know any of the contents until the day before it’s released, and all of us are prevented from revealing anything about it at all until it is formally handed down, on pain of contempt of Court.
The Supreme Court produce a weekly list (when they’re sitting) of which judgments are still awaiting and how long each one has been since the hearing. They appear on their blog, in the same article where the coming week’s cases are listed. Here’s the one for 31 October 2016 – note that 13 cases have been waiting for a judgment for longer than Firstbus (longest: a year) and there are 9 cases that have been waiting for a shorter time, though judgments aren’t released in strict order.
I’m very grateful for the support and interest in this case, and am anxiously awaiting the judgment!