Bus discrimination case

[whole diary]

[Rhydgaled]

The bike space on a 150/1 is in a separate area to the wheelchair space. On a 150/2 its the same place. I would think that a human being would get precedence over a recreational piece of machinery.

Is a train, or a car or a pushchair, a 'recreational' item? Why would a bike be any different?

[ChrisB]

Errr, don't the Law Lords now sit in the Supreme Court? Lord Justice xxx still exist....

[JayMac]

For continuity, 10 existing Law Lords (formally: Lords of Appeal in Ordinary) remained as members of the House of Lords on transfer of their judicial role to the Supreme Court in 2009. They however lost their right to speak or vote in the House of Lords until retirement from the Supreme Court. There are 12 judges in the Supreme Court and only four, as of today, are still peers. Over time new appointees will replace all the former Law Lords. Eventually all 12 justices of the Supreme Court will have no link to parliament.

The titles 'Lord' and 'Lady' and forms of address 'My Lord' and 'My Lady' remain.

[LiskeardRich]

The right decision in my opinion at the appeal. Why should the bus company be liable for an inconsiderate **** misusing the wheel chair space.

The original ruling opened a massive can of worms over several other issues by all accounts.

[Chris from Nailsea]

Hmm.  An interesting judicial admonishment from the appeal court judgement:

Lord Justice Lewison said: "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."

[TonyK]

What is seems to have confirmed is that there IS equality between different groups ... (s)he who gets there first has precedence; no discrimination either way.   Wheelchair first, pram has to wait for next service. Pram first, wheelchair has to wait for next service.  

My point also earlier, now seemingly vindicated by the Court of Appeal. By the way, I believe First were absolutely correct to appeal against the decision of the lower court. In so doing, they have robbed the unfortunate gentleman of his winnings, and his "no win no fee" lawyers of their cut (don't worry, they won't go hungry - there is insurance) but more importantly have case law that is binding on all lower courts. The judgment seemed to have hinged on:

But earlier, judges at the Court of Appeal ruled the "proper remedy" for wheelchair users to get improvements in such cases was to ask parliament.

Lord Justice Lewison said: "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."

This is wisdom at its simplest and best. I see it as admonishment of Parliament rather than of the judge in the Court of first instance. Parliament has ordained that spaces for disabled passengers (and drivers, swimmers, diners, etc) shall be provided, but not that they shall always be available. Supermarkets are required to provide 4% of their parking spaces as disabled spaces, seldom all used. But where would the supermarket stand legally if they were all full, and another disabled driver arrived? They would not be obliged to paint a new disabled bay there and then. In the case of the bus, were it to be full on approaching the bus stop containing an able-bodied passenger, and in the absence of anyone signalling that they want to get off, the driver would simply drive by. If the would-be passenger were wheelchair-bound, surely the driver would be under no greater obligation to stop?

Parliament, not the judiciary, must take the next step. Lord Denning was famous for forcing parliament's hand by interpreting law in such a way as to make it unworkable. I think we see the same process here in a different form, in that the Court has deliberately refused to explain and interpret the law beyond its words. To do so would have been to have opened the floodgates to further actions based on any one point of view. Sensibly, they have left it to the government of the day to take this further if they wish to do so.

Which they will certainly not wish to do. Hard cases make for bad law. They will leave things as they are, which is to require transport operators to provide spaces for wheelchairs, but leave it to the decency of other passengers to allow use of the same. This is not criticism of the mother of the sleeping child in the pushchair, whom I believe (having a week-old grandson to add to my collection) to have acted reasonably in refusing to remove said child and fold the buggy. Most times, that will suffice, but no less a person than Dame Tanny Grey-Thompson tells of receiving verbal abuse on buses and trains when usurping an able bodied passenger from the space designed to keep her wheelchair from blocking the aisle.

I hope to be able to read the judgment in full. The reasons behind the ruling are often not those reported in the media.

[chuffed]

Once again, FT,N you have cut through the fog of obfuscation on a complicated issue, like a shaft of blinding sunlight ! Your contributions to this forum are greatly appreciated by me, at least! If any other forum members feel the same way, please press the 'like' button !

[Chris from Nailsea]

The full text of the Court of Appeal judgement is available on the Courts and Tribunals Judiciary website, at http://www.judiciary.gov.uk/judgments/firstgroup-plc-v-paulley/

[ChrisB]

BBC^» (British Broadcasting Corporation - home page) News at Ten reports that Mr Pooley is appealing & taking the case to the Supreme Court.

Believes equality means giving the disabled priority.

[TonyK]

The full text of the Court of Appeal judgement is available on the Courts and Tribunals Judiciary website, at http://www.judiciary.gov.uk/judgments/firstgroup-plc-v-paulley/

I am much obliged, CfN! And thankful also for the kind comments of chuffed, and votes of others.

Long answer:

It seems to me that the main point of law here is found in regulation 12 (4) of the The Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers) Regulations 1990, which prohibit the carriage of a person in a wheelchair other than in the wheelchair space, appropriately restrained, with the driver bearing the onus of discretion and responsibility. This is the trump card. Everything else is either (rather badly thought out and drafted) guidance to accompany those regulations, or reference to the Equality Act 2010, which majors on discrimination, none of which is particularly relevant - what was formerly referred to as obiter dicta in law books.  If it isn't possible to accommodate a wheelchair user on a bus, then he cannot be discriminated against by reason of his disability if that is the reason why he cannot be carried.*

I see that an appeal to the Supreme Court is being considered, something that must be utter music to the ears of lawyers everywhere. The issue concerns disability, which is sensitive, but the facts are not in doubt. Any appeal must therefore be on a point of law, and the law doesn't seem to be particularly unclear either. But for the sensitivity of the case, the aggrieved Mr Paulley would be refused leave to appeal further by the Court of Appeal, and the Supreme Court would refuse to hear it because the law and its application in this case are clear. The Supreme Court can still hear the case if it feels there is an important point of public interest. That is undeniable, but they can only interpret the law. That legislation, after the Court of Appeal judgment, now looks like fine words about a noble idea, but with little strength - the inhabitants of our former colony may refer to it as "All mouth and no trousers".

So back to the legislature it is, then. You made the bus companies, at no small expense, provide for space for a wheelchair. You also made drivers responsible for the safety of their passengers within the confines of their company's stated policy and the law relating to the operation of public transport. Your legislation has been found wanting, or maybe not, on two occasions at least, so what do you want to do now?

Parliament could vote to make it compulsory for a wheelchair space to be cleared for a wheelchair-bound passenger, but would have to consider the safety of, as this case shows, a sleeping child in a pushchair. A mother, supported by a pressure group, could mount a similar challenge, with case law behind her.* Or it could require operators to revise their own policies, in which case the policies would have to become part of the law to take real effect. Or it could, and this is what I will take to Ladbrokes, set up a commission of some kind to gather evidence and make recommendations as to what form of consultation should be conducted to enable... etc.

(* Interpretation Act 2005:

Section 6: Gender and number.

In any Act, unless the contrary intention appears,^
(a)words importing the masculine gender include the feminine;
(b)words importing the feminine gender include the masculine;
(c)words in the singular include the plural and words in the plural include the singular.

So there. Now I do feel like I am writing an essay on some form of contract or tort law.)

Short answer:
No change.

[chuffed]

Is 'tort law' something that requires Peter Andre to pop up on my TV every 5 minutes, selling the blasted things (baked Alaska anyone?) for ^4 in Iceland ??

[ChrisB]

I can't see operators willing to accept having to force the operatives to enforce the availability of these spaces, frankly....handbags will fly if pushchair owning carers have to make way for wheelchairs & they will want to be seen to support their operatives.

What case law do mothers & pushchairs have behind them please?

[Network SouthEast]

It's all very well saying a wheelchair user has priority over a pushchair user, but what if the occupant of the pushchair has a disability? Or what is the person operating the pushchair has a disability preventing them from folding it, or carrying their child?

As has been mentioned on this forum before, often disabilities are not obvious from looking at them.

I do have sympathy for both sides here. Often it boils down to how a situation was handled at the time.

[Red Squirrel]

Not often we see this forum and Mumsnet having the same debate:

http://www.mumsnet.com/Talk/am_i_being_unreasonable/a1648418-Interesting-Bus-Company-on-wheelchair-Pram-spaces

[ChrisB]

It's all very well saying a wheelchair user has priority over a pushchair user, but what if the occupant of the pushchair has a disability? Or what is the person operating the pushchair has a disability preventing them from folding it, or carrying their child?

I do have sympathy for both sides here. Often it boils down to how a situation was handled at the time

Agreed, although bolshie Mums perfectly able to move are going to get even bolshier now.