The “extraordinary” failure of three court of appeal judges to protect the rights of wheelchair-users to travel on buses has left disabled campaigners “frustrated” and “appalled”.
The judgement over-turned a county court ruling that wheelchair-users should have priority in the use of dedicated wheelchair spaces over parents with pushchairs, and that the “first come, first served” policy of transport company First Bus breached the Equality Act.
Doug Paulley, who had taken the case against First Bus, following an incident nearly three years ago, vowed this week to continue his legal fight, and has sought leave to appeal to the supreme court.
The Equality and Human Rights Commission (EHRC) is considering a request to fund that appeal, should permission be granted.
Paulley, from Wetherby, had been planning to travel to Leeds in February 2012, but was prevented from entering the bus because the driver refused to insist that a mother with a pushchair should move from the wheelchair space.
Lady Justice Arden, Lord Justice Lewison and Lord Justice Underhill have now over-ruled the decision of Leeds county court and concluded this week that a driver needs only to request – and not demand – that a buggy-user vacates the space if it is needed by a wheelchair-user.
Lord Justice Lewison said: “What is a reasonable adjustment depends, among other things, on the impact of the adjustment on others.
“The judge seems to me to have thought that the needs of wheelchair users trumped all other considerations. If that is what he meant, I respectfully disagree.”
Lord Justice Underhill admitted that their judgment meant that wheelchair-users “will occasionally be prevented by other passengers from using the wheelchair space on the bus”.
He said: “Sometimes there will be a reasonable justification for that happening; but sometimes there will not.
“I do not, however, believe that the fact that some passengers will – albeit rarely – act selfishly and irresponsibly is a sufficient reason for imposing on bus companies a legal responsibility for a situation which is not of their making and which they are not in a position to prevent.”
Lady Justice Arden said that First Bus “must take all reasonable steps short of compelling passengers to move from the wheelchair space”.
And she said First Bus should provide training for its drivers and “devise strategies that bus drivers can lawfully adopt to persuade people to clear the wheelchair space when needed by a wheelchair user”, and suggested that changes in bus design could be made, such as providing fold-up seats or space for folded buggies.
She also suggested that wheelchair-users should lobby parliament “to strengthen the powers of bus drivers so that they could, for instance, require people to vacate the wheelchair space, or create new duties on other passengers, or to campaign for a different design of buses”.
The Department for Transport has so far refused to say whether it believes there is a need for new laws.
But the judgment has drawn condemnation from disabled activists, the equality watchdog, disabled people’s organisations, and Paulley himself.
Paulley described the judgment as “bad news” but said he and his supporters would “not back down lightly”, while he was seeking to appeal to the supreme court.
He said: “This judgement means a wheelchair-user has no effective legal rights if unable to gain access to a bus because a traveller blocks the designated wheelchair space and refuses to move. I don’t think that is right.”
Lord [Chris] Holmes, EHRC’s disability commissioner, said:”The commission is disappointed that the court of appeal has not given substantive support to wheelchair-users on the same basis as non-disabled people in relation to obtaining access to bus transport.
“The commission will study the judgments before deciding whether to support an appeal or press for legislative changes to make sure disabled people can use bus travel.”
Sue Bott, director of policy and development at Disability Rights UK, said she was “appalled” by the court’s “extraordinary” decision.
She said: “I fear many wheelchair-users and other disabled people will now be put off using public transport. It’s a bad day for disabled people and takes our rights backwards.”
Victoria Wright, campaigns officer for Trailblazers, a campaigning network of young disabled people run by the Muscular Dystrophy Campaign, said: “We are frustrated and extremely disappointed by this decision, which means that wheelchair-users do not have priority, in law, over wheelchair spaces on those buses that they are actually able to board.”
She added: “We will be closely monitoring how young disabled people are affected by the court’s decision and the next steps needed to ensure the rights of wheelchair-users are protected.”
Giles Fearnley, managing director of First Bus, said: “The verdict has given our passengers, drivers and the wider transport industry much needed clarification about the priority use of the wheelchair space on board buses, following two previous conflicting rulings.
“Our current policy, which is to ask other passengers in the strongest polite terms to make way for those who need the space, will remain in place.”
He claimed that First Bus was “leading the industry in improving bus travel for disabled customers”.
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