Paulley case: Request, not require?

In September 2013 Leeds County Court ruled in Doug Paulley’s favour after a woman refused to move her buggy out of the wheelchair space on the bus. The Court said that FirstGroup had failed to have in place an effective policy which gave priority to wheelchair users over other passengers.

FirstGroup appealed the decision, and the Court of Appeal has overturned the judgment made by Leeds County Court, ruling that imposing a legal duty on bus operators to compel passengers to move from the wheelchair space was “a step too far”.

First Group’s ‘request but not require’ policy is in line with most other bus operators. Although the Court of Appeal ruled in favour of bus operators, consideration was given to whether there is potentially some middle ground between the request policy and the require policy, which could require bus drivers to exercise their discretion in any given situation to determine whether someone should be required to move.

However, the Court of Appeal made it clear that a watered-down version of the ‘absolute priority’ policy sought by the claimant would simply be unworkable; it would place too onerous a burden on bus drivers to adjudicate between competing claims to the wheelchair space and could cause conflict.

The Court accepted that the policies adopted by most bus operators are cast in a way that seeks to minimise the potential for conflict, while achieving some degree of priority for wheelchair users. It is therefore likely that most bus operators will not make any changes to their wheelchair space policy in light of this decision.

The Court of Appeal did consider whether bus operators had a legal duty to take other steps to remove the potential disadvantage faced by wheelchair passengers. Lord Justice Underhill stated that he would “hope and expect” that drivers would do more than simply ask passengers to move once, and may even threaten not to move the bus.

However, he recognised that this would risk inconveniencing other passengers and was “very uneasy” about imposing a duty on bus operators to have a policy requiring drivers to cajole passengers into moving. He also recognised that, in reality, most drivers will already exercise their judgement as to how insistent to be with passengers.

Similarly, Lady Justice Arden said that, although bus operators are not required to compel passengers to move, this does not mean that they are free to do nothing; she suggested that bus operators should take “common sense” steps, including providing training for bus drivers, devising persuasion strategies, having awareness campaigns, putting up notices and conducting passenger surveys. It would be sensible for all bus operators to take stock and consider implementing these measures if they have not already done so.

Mr Paulley now has the right to pursue an appeal to the Supreme Court. This depends on whether the Supreme Court judges give permission for the appeal, which is by no means a given, but the Supreme Court is likely to be very interested to hear a case which appears to limit the statutory protections given to disabled transport users.

Mr Paulley will also need to secure funding for his appeal to the Supreme Court; the Equality and Human Rights Commission provided funding to enable Mr Paulley to be represented in the Court of Appeal proceedings, but it is not clear whether they will extend this to the Supreme Court. If the matter does go before the Supreme Court, their say will be final.

However, given the significance of the decision for the bus industry and transport sector as a whole, it is likely that other bus operators would want to have their say at the Supreme Court hearing, which is possible under “intervention” rules.