Prosecute Bus Drivers for Refusing Wheelchair Users – it’s a Criminal Offence

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Feb 032017
 

Bus drivers refusing to allow wheelchair users onto buses where the wheelchair space is either unoccupied or occupied by people who can readily and reasonably move are committing a crime. They should be prosecuted, given a £500 fine and 3 penalty points. Then they should have the consequences for their employment consequent to being convicted of a crime they have perpetrated whilst working.

Here’s the ins and outs.

S24 of the Public Passenger Vehicle Act 1981 states that everybody must comply with regulations under that Act under pain of being triedon summary conviction” i.e. in magistrates’ court (thus a criminal record), “a fine not exceeding level 2 on the standard scale” (£500) and, for bus drivers subject to the Act, “the conviction to be endorsed upon the licence“. On the Government’s list of endorsements,  the only appropriate code seems to be M60 “Offences not covered by other codes (including offences relating to breach of requirements as to control of vehicle)” – 3 points lasting 4 years.

The “Conduct Regulations” are one set of those regulations. These are properly and snappily titled “The Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers)(Amendment) Regulations 2002“. Read the Conduct Regulations (PDF). Amongst other things, they say:

12.—(1) This regulation applies (subject to regulation 15(1) (duties requiring the proper functioning of equipment)) in relation to a driver and a conductor of a Schedule 1 vehicle.
(2) If there is an unoccupied wheelchair space on the vehicle, a driver and a conductor shall allow a wheelchair user to board if—
(a) the wheelchair is of a type or size that can be correctly and safely located in that wheelchair space, and
(b) in so doing, neither the maximum seating nor standing capacity of the vehicle would be exceeded.
(3) For the purpose of paragraph (2), a wheelchair space is occupied if—
(a) there is a wheelchair user in that space; or
(b) passengers or their effects are in that space and they or their effects cannot readily and reasonably vacate it by moving to another part of the vehicle.

(“A Schedule 1 vehicle” simply means a wheelchair accessible bus.)

So if you’re not allowed on a bus in your wheelchair, and the wheelchair space is either empty or there’s somebody in the space who can “readily and reasonbly” move to another bit of the bus, call the police and report the driver.

So: take a recent situation.

  • Kirsty Shepherd, a wheelchair user from Wakefield, was refused access to a bus because there was a baby buggy in the buggy space.
  • This bus had a separate buggy and wheelchair space: so the wheelchair space was free.
  • The wheelchair space was empty.
  • Kirsty quite rightly protested at not being allowed on, and insisted on speaking to the driver’s boss, so the driver phoned his boss on his mobile.
  • The boss told Kirsty that Kirsty could catch the bus.
  • The boss told the driver that Kirsty could catch the bus.
  • The driver still refused.
  • The boss told Kirsty, again, that she could catch the bus.
  • The boss told the driver again to let Kirsty on.
  • The driver still refused – then terminated the bus, telling everybody to get off.
  • The driver told the other customers that Kirsty had terminated the bus.
  • Everybody got off and most of the passengers shouted at Kirsty for being “selfish”.
  • The driver shouted at Kirsty, accusing her of terminating the bus.
  • Kirsty told the driver to put the bus back into service
  • The bus drove off with all the passengers back on board. Even the mum with the pushchair in the pushchair space. But the wheelchair space was still empty – because Kirsty was still not allowed on.
  • Kirsty, understandably very distraught, successfully caught the next bus, 40 minutes later. So did somebody else with a pushchair. They simply occupied the pushchair space and the wheelchair space respectively, without an issue, as Kirsty has done many times before.

On Monday (3 days ago) Arriva said they were “investigating this as a matter of urgency“. So I emailed Arriva pointing out that the driver had committed a criminal offence, and that

I expect you to act precisely as you would if a driver had conducted another criminal offence whilst on duty, for example drink driving or assaulting somebody. You are under a duty to report this matter for prosecution, or to place an information before the magistrates. You will also of course have to deal with any other matters, but refusal to allow a wheelchair user on board when the wheelchair space is free is a specific criminal offence in and of itself. I look forward to hearing that you have treated this criminal offence with the seriousness it deserves.

I got a read receipt for my email. So I know they got it.

Arriva have today issued an apology. Apparently, Arriva:

said there had been “a genuine misinterpretation” of company policy and that the company’s policy was complicated by the many different configurations of buses in the fleet.

A genuine misinterpretation?! The law couldn’t be clearer: if the wheelchair space is free the driver MUST allow a wheelchair user on. What’s more the driver’s boss told him, repeatedly, that he must allow Kirsty on in her wheelchair. If the driver believed this is company policy,  that doesn’t say much for the driver! If the driver similarly believed company policy required him to break speed limits and to drive while drunk, would he do so? As to the supposed confusion over “different configurations“: what?!

Bollocks.

So what are Arriva doing following their driver’s criminal behaviour whilst driving their bus?

  • The company is to distribute new signs to “clarify the position regarding wheelchair access” to its bus fleet
  • The company is also to issue a driver briefing as part of its disability awareness training
  • The driver is going on his usually yearly update, that might cover disability awareness and wheelchairs
  • The driver’s manager will have a word with him, just like he did during the incident
  • The company said sorry to Kirsty.
  • And…
  • …That’s it.

NB: To her eternal credit, despite being absolutely humiliated by the driver’s treatment of her and him blaming her to other passengers, Kirsty went to the media and achieved widespread coverage. (She’s marvelous.) So this isn’t just how Arriva deal with drivers’ criminal behaviour, it’s how they do so under a publicity spotlight.

Arriva evidently don’t report, suspend or sack drivers who commit crimes whilst driving

So next time you’re on an Arriva bus, don’t complain if the driver verbally assaults someone, foments hatred among passengers leading to a likely breach of the peace, if he refuses somebody based purely on prejudice against their race then blames them for terminating the bus, shouts at them for no good reason, or whatever, because quite clearly Arriva expect and tolerate such illegal discrimination and hate crimes.

Other criminal offences

Drivers’ failures to do any of the following are also criminal offences under the Conduct Regulations, also meriting a £500 fine, 3 points and a criminal record:

Part Obligation
14.1 Deploy the ramp when a wheelchair user wants to get on or off
13.2 Operate the kneeling mechanism when needed and on request
14.2&3 Assist disabled people to get on or off the bus, if needed
12.4c Carry a means of manually operating automatic ramps if they break
12.4d Ensure wheelchair users can access and exit of the wheelchair space
12.4e Ensure wheelchair users are in the space before continuing driving

I therefore urge wheelchair users to call the police if a driver fails to deploy the ramp on request (e.g. in response to the blue bell)

An interesting corollary: drivers are obliged to allow wheelchair users onto the bus if passengers or their effects are in the wheelchair space and they cannot readily and
reasonably vacate it by moving to another part of the bus, irrespective of whether or no those passengers actually move. Drivers are then obliged to make sure that any wheelchair user is correctly and safely positioned in a wheelchair space. Should the wheelchair user be unable to get access to said wheelchair space because said passengers refuse to move, an interesting stalemate should develop where the bus driver refuses to drive the bus until the non-disabled person vacates the space. As identified by Lord Toulson:

There is therefore an apparent tension in the regulation, because regulation 12(2) requires the driver to permit a wheelchair user to board if there is an unoccupied wheelchair space, which includes a space physically occupied by a person who could readily and reasonably move elsewhere, but for as long as that person remains in the wheelchair space the vehicle must not be driven.

Jan 302017
 

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 society isn’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 buggy on 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.)

(video on Supreme Court website, about 7min 30s in)

The County Court Judge put it more starkly:

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.

(County Court judge as quoted in the Court of Appeal judgment)

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 when we’re not using it, us disabled people (well, most of us anyway) object when you selfishly occupy the wheelchair space and refuse to return it to us when we need it.

Happily most parents and guardians agree with usas 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 space when we need it.

Graphic: Equality doesn't mean treating everybody the same

Image after Craig Froehle

Jan 232017
 

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”!

Here’s the footage from 5 News:

Kerdesan commented on another video, giving her experience:

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.

Arriva’s Conditions of Carriage

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Jan 222017
 

Compare and contrast:

Arriva’s Conditions of Carriage from August 2013 to December 2016:

The driver can require that pushchairs and all types of buggies are folded at busy times, or to request occupants of the designated area to move elsewhere on the vehicle if a customer wishes to board with a wheelchair or scooter. You should co-operate in allowing proper use of this space by vacating it if necessary in favour of a wheelchair or scooter user.

and Arriva’s Conditions of Carriage as of January 2017:

The low floor area on our vehicles generally has a shared bay for the carriage of either one wheelchair or scooter or up to two unfolded pushchairs. Some buses have a separate pushchair bay. We accept unfolded pushchairs on buses that have a shared bay only if it is not already occupied by a wheelchair user or mobility scooter. If a wheelchair or scooter user wishes to board, you are required to fold your pushchair and stow it in the luggage facilities on the vehicle. A wheelchair or mobility scooter cannot be accepted if the vehicle is full.

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.

Jan 182017
 

Following today’s judgment in FirstGroup v Paulley in the Supreme CourtFirstBus’s MD Giles Fearnley said:

We are therefore also pleased that the Supreme Court found that we did not discriminate against Mr Paulley.


Here’s the judgment. 

I defy Giles Fearnley, FirstBus or anybody else to identify the supposed Supreme Court finding that First Groupdid 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 not FirstGroup 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?

Jan 182017
 

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.

Photo: Mum and Dad at Westminster

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!

 

Jan 122017
 

The judgment in FirstGroup PLC vs Paulley, about:

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

has been written and will be handed down on Wednesday, January 18th 2016 at 09:45am GMT in Supreme Court courtroom 1.

A 5-minute summary will be read out in Court. This will be streamed live on the Supreme Court website and available shortly after on the Supreme Court Youtube channel.

There are special arrangements for access for wheelchair users – though the timing of the handing down means it’s less likely there will be as much competition for spaces as there was in the hearing.

The actual judgment is likely to be substantially longer, and should be available online shortly after.

I don’t know what it says, and I’m not allowed to know until the day before – and then I can’t say anything until it’s handed down

I am extremely grateful to all the many people who have supported this case, and all I can say is – keep your fingers crossed!

“Have you got a problem? I won’t stop for you next time!”

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Jan 102017
 

Bus drivers in London often ignore wheelchair users’ requests to get off, driving off with them on board, on a regular basis – over 50 times to Chris alone, as put to TFL’s manager on ITV News.

Today, after ignoring Chris’s request to get off, the driver had a parting message for him…

Data controllers’ compliance with Section 10 notices: the ICO now assess.

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Sep 202016
 

I’ve written previously about the Information Commissioner’s assessment of organisations’ compliance with S10 notices. S10 is a mechanism by which a data subject can force a data controller to stop processing his/her personal data, or stop it from processing in a certain way, where such processing is causing substantial, unwarranted damage or distress.

Previously the ICO has always insisted that they can only assess organisations’ technical compliance with S10(3), i.e. whether the organisation has responded to the notice and whether such response was within the 21 day timescale. The ICO would not consider whether the organisation had broken the law by failing to comply with a valid notice.

The ICO have now changed their policy. The attached Lines to Take document now states:

an individual may make a request for an assessment under s.42 of the DPA where:

  • A data controller has not responded to a notice at all.
  • A data controller has not responded within the 21 day timeframe.
  • A data controller has not provided its reasons for refusing to comply with a notice.
  • A data controller has failed to comply with the data subjects request to cease processing.

That last point is new!

This draft Casework Advice Note goes into more detail.

Section 10(4) refers to the power of the court to order compliance with a section 10 notice.
The Commissioner is still able to make a s42 assessment on processing that may be in breach of the sixth principle (complying with a section 10 notice).

Failure to comply with a justified notice or failure to respond to a valid section 10 notice is a breach of the sixth principle.
The Commissioner can make an assessment of whether processing has been or is being carried out in compliance with the provisions of the DPA – in this case a breach of the sixth principle arising from a failure to comply with a data subject’s section 10 rights.

We can make an assessment of:

  • any non-compliant processing causing unwarranted damage or distress which means that the notice is justified; and/or
  • the data controller’s compliance with the procedural obligations under 10(3) to:
    • respond within 21 days of receiving the objection;
    • explain whether it intends to comply with the objection; and,
    • if it does not intend to comply with the objection in some way, give reasons for the decision.

You CAN also:

  • carry out a s42 assessment on whether the data controller has complied with its obligations under s10(1)

They’ve put “CAN” into Bold for the following reason (also in the draft Casework Advice Note):

Problems with the previous line on ASK knowledge base
The previous line said that:

‘the only situation where the ICO can get involved with a request made under section 10 is where the organisation hasn’t provided any response within 21 days, we cannot assist with any matters relating to compliance with the request….’

This line may have arisen as a result of our preferences or priorities in terms of the types of complaints we take on as an office where there is a technical limitation on our legal powers, or iit may be that we decided for operational reasons that we would not make assessments on a data controller’s compliance with their section 10(1) obligations.
Just because s10 refers to the powers of the court to order compliance with a section 10 notice does not preclude the Commissioner from making an assessment on processing that is in breach of principle 6.
Other sections of the DPA that relate to principle 6 refer to the order making powers of the court. For example, section 7(9) allows the court to order compliance with a SAR, but wouldn’t prevent the Commissioner from making her own assessment on whether or not a data controller should comply with a section 7 request.

It would seem that I have forced the ICO to reconsider their approach. Their internal dialogue on my complaint is entertaining. I particularly like the implied criticism:

In the present case, rather than referring his complaint about Sky’s processing to the Commissioner for an assessment, the data subject has tried to sort out the matter himself by issuing a section 10(1) notice.

How irresponsible of me 😀

Jul 272016
 

My valued friend and co-campaigner told me about his disgusting experience at the hands of Southern Rail staff. I have reblogged the below from the excellent Transport for All website.

I very much hope Southern Rail – and other rail providers – take it seriously. Their response to it doesn’t inspire confidence though; they clearly hadn’t even read it…


A very unpleasant experience for a wheelchair user at Clapham Junction

Blog by TfA member Chris. This blog and its content reflect the views of the author only.

Clapham Junction is a busy and important transport hub in South London, and I’m pleased to say that it has step-free access to all platforms, and wheelchair ramps on every platform.

But lifts and ramps are not enough to make a station disabled-friendly. The attitude and behaviour of the station staff matter hugely.

Last weekend I had an extremely unpleasant experience at Clapham Junction Station. It was not my first experience of rudeness and unhelpfulness from Southern Railway staff at this station, but it was certainly the worst.

I’m a wheelchair user. I arrived at platform 15 on Saturday afternoon, and asked a member of staff on the platform for assistance with a ramp to board a train.

His response to my request was curt and unfriendly: “Next train“, with a jab of the finger in the direction of the track, and with that he disappeared.

In itself this small moment of rudeness was not surprising, it’s what I have got used to at Clapham Junction when I interact with Southern Railway staff. But then things got much worse.

The train pulled in and I positioned myself by the door with the wheelchair logo, as I wanted to be placed in the wheelchair space on the train.

The member of staff I had spoken to didn’t come with a ramp. I couldn’t see him until everyone had boarded, and then I saw that he was at the back of the train with the ramp. I waved to him. He refused to move. I pointed to the doors with the wheelchair logo. He shouted that I had to board at the back of the train (where there was no wheelchair space). Some of his colleagues told me that I had to get on at the back. I said no, I wished to travel in the wheelchair space. The man with the ramp did not budge, and kept gesturing me to come towards him.

I did not want to travel in a part of the train without a wheelchair space because I do not consider this a safe or comfortable way to travel, so we reached an impasse. The man with the ramp let the train go, without me onboard.

He then came over and addressed me angrily, and with a staggering level of rudeness, telling me I should have boarded exactly where he wanted me to. I told him that I had wanted to be placed in the wheelchair space, as that was the only safe place for me to travel.

He was not displaying a name badge. I asked him three times for his name. Three times he refused, and then he walked away briskly, refusing to communicate with me any further.

He then placed the ramp flat down on the platform, near the platform edge, for several minutes, perpendicular to the track, in such a way that customers could easily trip over it, and possibly even fall onto the tracks.

After this I encountered a second member of staff. He too was extremely rude to me when I explained that his colleague had refused to allow me to board the train where the wheelchair space was. He told me that I was obliged to board the train exactly where the platform staff had decided.

He also make this extraordinary statement: “If you don’t know the rules, you shouldn’t come here“. This statement was too bizarre and silly to argue with, but it was also an act of intolerable rudeness.

This second member of staff also refused to give his name, and was not showing a name-badge.

Later they put me onto a train, in the wheelchair space as I had requested at first, and I was able to make my journey at last.

Disabled people should be able to travel with the same ease, flexibility, safety and comfort as everyone else. But I find again and again that I come up against unhelpfulness, rudeness, ignorance and inflexibility when I want to travel on Southern Railway train services. I do not believe that this company takes its responsibility to its disabled customers at all seriously.

A great deal needs to change before train services are truly accessible, and before wheelchair users can use them without stress, distress and annoyance. Transport for All continues to campaign for full accessibility across all of London’s transport networks. Please join us if you would like to support our campaigns – you can find out here how to become a member.


Reblogged from the Transport for All website.

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