Public transport, the Equality Act and the Supreme Court

A bad combination?

 

I have previously discussed my feelings towards the Equality Act as it applies to buses on this blog, and a recent development has reinforced my concerns about the appropriateness of the rules when it comes to achieving proper and justified equality. It relates to the shared bay on modern low-floor buses that can be used both by wheelchair users and those with babies in pushchairs and reached all the way to the Supreme Court. While not making it a legal requirement to give wheelchair users priority use of this bay, the court's guidance strongly implies they have a greater right to it than any other group by indicating that bus drivers must do more to persuade other users to vacate it than simply asking them, for instance by rephrasing their request as a mandatory requirement or refusing to drive on until they have complied.

As long as this remains a shared space that multiple groups have equal entitlement in law to use I can see no possible way to resolve a dispute such as this in a fair manner that doesn't discriminate against either party, so true equality cannot therefore be achieved and the result of this case seems inappropriate and poorly thought out with insufficient clarity and not enough legal substance. While bus operators claim to welcome the new guidance, in reality they have no choice as any public criticism of it would itself cause them to be labelled as prejudiced against the disabled, but as an observer outside the industry I have a number of serious misgivings: it sets a dangerous precedent that implies the disabled are entitled to greater rights than others and is likely to have far-reaching consequences to wider society, not just within the bus industry. 

To summarise the case, it began back in 2012 when wheelchair user Doug Paulley attempted to board a First bus in Leeds, only to find the wheelchair bay legally occupied by a mother with a sleeping baby in a pushchair. In accordance with company policy, the driver asked her to move out of the bay, but she politely declined this request (which she was fully entitled to do), meaning Mr Paulley was unable to travel on this particular bus and had to wait for the next one. Mr Paulley considered First's policy of "requesting, not requiring" other passengers to move for wheelchair users was discriminatory towards the disabled and took them to court. He won this initial case, but First successfully appealed to the High Court, only for Mr Paulley to launch a further appeal to the Supreme Court. Over four years and many thousands of pounds in legal fees later, it is the outcome of this latest hearing that was announced last week.

Was Mr Paulley justified in taking his case to the Supreme Court and is the outcome appropriate? (Image: BBC)

Mr Paulley's solicitor complains that the ruling does not go far enough as "there's no right as things currently stand to force someone off a bus". Is it not a good thing that no such rule exists? No fare-paying passenger should have the right to eject another fare-paying passenger from public transport, preventing them from completing the journey they are entitled to make and potentially leaving them stranded in an unfamiliar location. As soon as one group is given this right over another, this ceases to be equality and becomes preferential treatment of that group by giving them additional rights that others lack.

As an able-bodied person, I cannot board a bus and expect another passenger to give up his or her seat to me, yet this ruling strongly implies that wheelchair users do have the right to force others to move from areas they are entitled to use. That is very far from the concept of equality and is in fact a fundamental inequality, as wheelchair users are the only group to have this right and it is denied to others, which surely is discrimination against the latter. The principle of equality suggests that the right to ask the other to move should either apply equally to a parent with a pushchair and a wheelchair user or to neither group, given that the area they are competing for is a shared space that both have equal entitlement in law to use. Neither a baby nor a disabled person has the ability to walk so both are relying on a form of transport, be it a pushchair or a wheelchair, and both should have the same rights to bring that transport onto a bus with neither having priority over the other.

I suppose the problem can partly be blamed on the design of many modern pushchairs. When I was young, pushchairs were small, lightweight things that could easily be folded and didn't take up much space. Nowadays the majority of parents seem to use enormous pushchairs with sturdy metal frames and big off-road tyres that are diffcult to fold and in many cases are larger than a typical wheelchair. While the regulations define a maximum size of wheelchair that can be accommodated on a bus, there appears to be no similar rule governing the size of permissible pushchairs and no legal impediment to excessively large and non-foldable versions being taken onto a bus. The bigger issue though is that Mr Paulley's greater sense of entitlement to use that space has been supported by a court ruling.

Why should the responsibility of enforcement fall to the poor old driver? He or she already has more than enough responsibility for driving the vehicle, keeping to the timetable and handling fares and tickets, and being required to arbitrate disputes without solid legal backing could put him or her in a very difficult position. Maybe I'm expecting too much from society, but mature adults should be able to amicably resolve situations such as this between themselves without requiring another party to get involved. What has not been made clear in the media coverage is whether the bus was otherwise full or if a seat was available for the mother to move to. Even if a seat was available, waking and disturbing a sleeping baby whose cries are likely to be a distraction to the driver, holding the baby in one hand while folding the pushchair with the other and then carrying both to a seat is practically impossible, so is the request to move genuinely reasonable or do parents in this situation have strong grounds for refusal?

It seems First's policy of politely asking other passengers to give priority to the disabled is no longer good enough

Importantly, the ruling also fails to provide any guidance on what should happen if one or other party refuses to accept the driver's decision, and the driver cannot afford to wait indefinitely for an agreement to be reached, being under considerable pressure to run to often very tight timetables. The guidance suggests the driver should refuse to move the bus until the passenger occupying the bay has vacated it, but in practice this is unworkable as any delays not only inconvenience all other passengers but run the risk of the operator receiving substantial fines for running late and not adhering to the timetable. Not only that, but it also places a huge extra burden of time and money on already hard-pressed operators to devise and implement suitable training programmes that equip their drivers with the necessary skills to enforce this new guidance.

One has to wonder how the situation might have played out had it been another wheelchair user occupying the bay instead of an able-bodied parent with a pushchair. In all probability, Mr Paulley would simply have accepted that he was unable to travel on this bus and waited for the next one without questioning the other wheelchair user's right to travel, so why was he so unwilling to accept a perfectly reasonable and valid refusal of his non-legally-binding request from a member of a different user group who are also entitled to use that space? Given that the operator's policy is legal and the driver fulfilled his or her obligations under that policy by asking her to move, should Mr Paulley have had any real grounds to contest it? The simplest and most appropriate argument is the one that applies to seated passengers: first come, first served, so those already on the bus have priority over those who have just boarded, regardless of their circumstances. It is also worth bearing in mind that this incident occurred in a major city with a frequent bus service, not one of those rural areas that are lucky to see one bus per week, so he would not have suffered major hardship by waiting for the next bus.

Had common sense prevailed, the matter would never have come to court, wasted so much time and money and set a dangerous precedent for others. By seriously suggesting he should be allowed to throw other passengers off the bus to make way for him, Mr Paulley comes across as one of those people who believe their disability gives them a massive sense of entitlement, far above and beyond what is reasonable. The root cause of the problem in a wider sense appears to be that questioning the beliefs of a minority group is itself considered discriminatory and so unreasonable demands such as this invariably end up getting supported by those with authority, which is a flagrant abuse of equality and the concept of the 'reasonable adjustment'.

While the Supreme Court did at least stop short of upholding this ridiculous notion, their assertion that drivers need to do more to pressurise other passengers into giving priority to wheelchair users without giving them the legal backing to enforce this is a worrying development that is likely to have very serious consequences for bus drivers and operators. There are so many unanswered questions and grey areas that are open to interpretation, but a strong implication that the disabled do indeed have a greater right to preferential treatment than any other minority group, which is a serious erosion of the noble principles of equality and is likely to cause a great deal of trouble, not only within the bus industry but to society as a whole. It is a controversial topic but I hope I have managed to provide clear and logical arguments against the new guidance without coming across as discriminatory or anti-disabled. I am all for equality, provided it is fair, justified and genuine equality and not a minority group misusing the principle to gain preferential treatment over others.