WHEELCHAIR V BUGGY – WHEELCHAIR WINS (JUST) – DUTY TO MAKE REASONABLE ADJUSTMENTS - FIRSTGROUP PLC V PAULLEY [2017] UKSC 4

WHEELCHAIR V BUGGY – WHEELCHAIR WINS (JUST) – DUTY TO MAKE REASONABLE ADJUSTMENTS - FIRSTGROUP PLC V PAULLEY [2017] UKSC 4

FirstGroup operated buses which had a space marked by a wheelchair sign and a notice saying “Please give up this space for a wheelchair user”. Mr Paulley was a wheelchair user who attempted to board one of the buses in February 2012 only to find a woman with a sleeping child in a pushchair had occupied the designated space.  The bus driver asked the woman to fold down the chair and to move, however, the woman refused to, saying that the pushchair did not fold, and Mr Paulley was unable to board the bus.  Mr Paulley claimed that FirstGroup had failed to make reasonable adjustments, and applied a “Provision, criterion or practice” (“PCP”) consisting of a “first come, first served” policy whereby a non-wheelchair user occupying the space would be requested to move, but if the request was refused nothing more would be done.  Mr Paulley succeeded at first instance and was awarded £5,500 damages.  The Court of Appeal allowed FirstGroup’s appeal on the basis that it was not reasonable to hold that FirstGroup should adjust its policy so that its drivers required, rather than requested, non-wheelchair users to vacate a space.  Mr Paulley appealed to the Supreme Court.

The Supreme Court allowed Mr Paulley's appeal in part. It held that FirstGroup’s policy requiring a driver to simply request a non-wheelchair user to vacate the space without taking any further steps was unjustified. Where a driver, having made such a request concluded that a refusal was unreasonable, he or she should consider such further step to pressurise the non-wheelchair user to vacate the space, depending on the circumstances. 

However, the Supreme Court did not restore the order for damages (although Lady Hale, Lord Kerr, and Lord Clarke were in favour of doing so).

The case is an interesting example of the interplay of the duty to make reasonable adjustments in the provision of public services and other societal groups with competing needs. The Supreme Court were influenced by the fact that FirstGroup were to a degree limited by what they could do as a matter of reality to enforce the notice. Enforcement steps were likely to cause confrontation with passengers and delay.  An absolute rule to vacate the space would be unreasonable and they could not require the non-wheelchair user to leave the bus. The Supreme Court suggested that the driver could rephrase the request as a requirement (where the non-wheelchair user could move elsewhere on the bus) or refuse to drive on for several minutes.   Failing further legislation, this decision relies to a large extent upon the common sense of the travelling public and the old non-legal maxim of “treat others as you would want them to treat you.”

GILLIAN CREW

18th January 2017