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by Pat Feast, School of Law, University of Portsmouth

Paulley v First Group plc [2014] EWCA Civ 1573 raises interesting questions about the meaning of Baroness Hale’s dictum that having a disability entails an element of more favourable treatment.  It is clear that the disabled person is not always entitled to priority and the Paulley case poses difficult questions about when this element of more favourable treatment should be accorded to the disabled person.

The problem in Paulley requires the Court to decide whether a disabled wheel chair user has priority over a mother with a sleeping child in a pushchair when the latter already occupies the dedicated space for wheelchair users on a public service vehicle.

Disability discrimination is still very much a discrimination apart.  Unlike the Sex Discrimination Act 1975 and the Race Relations Act 1976 where “men and women or black and white, as the case may be, are opposite sides of the same coin… [e]ach is to be treated in the same way… the differences between the genders are generally regarded as irrelevant”.  The DDA “does not regard the differences between disabled people and others as irrelevant… [i]t does not expect each to be treated in the same way… [i]t necessarily entails an element of more favourable treatment (per Baroness Hale in Archibald v Fife Council [2004] UKHL 32, para. 47).

In 1990 the Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers) Regulations 1990 (the Accessibility Regulations) were introduced to make vehicles accessible to wheelchair users and imposed criminal sanctions.  These were amended in 1999 and supplemented by legislation prohibiting disability discrimination, (Disability Discrimination Act 1995) which has now been replaced by the Equality Act 2010. The Regulations make it a criminal offence if the driver of the bus does not allow a wheelchair user to use an unoccupied wheelchair space. The Regulations go on to state, however, that the space may be occupied if it is being used by another wheelchair user or ‘passengers or their effects are in that space and they cannot readily and reasonably be vacated by moving to another part of the vehicle’[1]

The bus which Mr Paulley attempted to board was operated by a subsidiary of FirstGroup (FG) and was equipped with a lowering platform and wheelchair ramp and (meeting legal requirements)[2] provided a space for wheelchair users.  On the day Mr Paulley boarded the bus the wheelchair space was however already occupied by a pushchair and the mother of the sleeping child refused to move it. Mr Paulley offered to fold his wheelchair and sit in an ordinary seat; however the driver was concerned that this would not be safe. The driver of the bus took no further action and Mr Paulley was forced to wait for the next bus.

At the time of the incident, FG’s policy stated

“ …….. If the bus is full or if there is already a wheelchair user on board unfortunately we will not be able to carry another wheelchair user. … Wheelchairs do not have priority over buggies, but to ensure that all our customers are treated fairly and with consideration, other customers are asked to move to another part of the bus to allow you to board.

Unfortunately, if a fellow passenger refuses to move you will need to wait for the next bus.”

Mr. Paulley succeeded in the County Court. Recorder Isaacs found that the policy was a “provision criterion or practice”[3] which placed Mr Paulley at a substantial disadvantage[4] by comparison with non-disabled passengers.[5] The reliance on substantive disadvantage avoided confronting the problem of the required element of more favourable treatment. It is contended that the decision appears to ignore the policy underpinning s13(3) Equality Act 2010[6] which appears to permit and make lawful actions which prioritise disabled persons over other non-disabled groups.

The CA upheld the decision but left unaddressed the problem faced by wheelchair users confronted by another non-disabled person occupying the wheelchair space. There are however persuasive reasons why the law should not be refashioned to create a priority for the wheelchair user in these circumstances. Were it not so, legal and practical problems would result.  Most obviously, granting the wheelchair users priority would have required the driver to exercise coercive powers over the recalcitrant non- disabled user who refused to give up the space and the use of force could have exposed the bus driver to harm should the non-disabled user resist. Such an outcome would not only place the bus company at risk of breach of mutual trust and confidence but it would also weaken the presumptive monopoly that the State has in the use of force in society.

At another level, there are more fundamental problems of justice.  Often the competing non-disabled user will be a mother with a pushchair.  It is not self-evident that such a user of a public service vehicle should potentially have to disembark to make way for the wheelchair user.  These are difficult decisions but however apparently unpalatable; it is argued that the decision in the Supreme Court in Paulley should not overturn that of the Court of Appeal.

[1] Reg 2(b)

[2] The Public Service Vehicles Accessibility Regulations 2000 (PSVAR) cover all new buses and coaches brought into service since 31 December 2000, which carry more than 22 passengers and are used to provide a local or scheduled service:

[3] s19 Equality Act 2010

[4] s23 Equality Act 2010

[5] Referred to in para 9 CA (Civil Division) on Appeal from Leeds County Court. 11/12th November 2014

[6] S13(3) if the protected characteristic is disability and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably that A treats B