The court of appeal has issued an important and interesting judgement about the extent to which bus companies have to enforce their policies about the wheelchair space. The introduction sets out the scope of the issue:
- This appeal has attracted some public interest, so it is important to be clear about the issue. It is not about whether non-wheelchair users should move out of the wheelchair space on a bus in order to accommodate a passenger in a wheelchair. Of course they should if that is possible. Nor is it about whether mothers standing in the wheelchair space with a child in a folding buggy should fold their buggies in order to make way for a wheelchair user. Of course they should if that is possible. Non-wheelchair users, unlike wheelchair users, will normally have a choice about which part of the bus to sit or stand in. Common decency and respect for wheelchair users should mean that other passengers make way for them. What is at issue is whether the bus company must have a policy to compel all other passengers to vacate the wheelchair space irrespective of the reason why they are in it, on pain of being made to leave the bus if they do not, leaving no discretion to the driver.
- For the reasons that follow I have concluded that that is a step too far.
The original judge had said "alteration to the conditions of carriage which would require a non-disabled passenger occupying a wheelchair space to move from it if a wheelchair user needed it; coupled with an enforcement policy that would require non-disabled passengers to leave the bus if they failed to comply with that requirement." but First had decided to appeal based on a case in Middlesborough having an opposite outcome and have won.
While this is a failure for the absolute right for a wheelchair user to claim the space what makes the judgement interesting is the reasoning of each of the judges involved. As per usual there appear to be gaps in the legal frameworks as passed down by parliament. There is also the consideration about how far a bus driver can reasonably go in enforcing the company's policy. There is also a lot of associated discourse, for while they all allowed the appeal, each judge wanted to have a say on steps that the bus company could take without a change in the law. Mainly trying to reduce the probability of disadvantage to any wheelchair users and to prevent the policy being perceived as “first come first served” by other users of the space.
So the bus company must take all reasonable steps short of compelling passengers to move from the wheelchair space. We have not had argument on this but provisionally I consider that the bus company must provide training for bus drivers and devise strategies that bus drivers can lawfully adopt to persuade people to clear the wheelchair space when needed by a wheelchair user. Bus drivers have to use their powers of persuasion with passengers who can move voluntarily. The driver may even decline for a short while to drive on until someone moves out of the wheelchair space. There is no risk of liability to such passengers in requesting them (firmly) to move, if they can, because if they cannot safely do so, they will not do so. The bus company should also have an awareness campaign and put up notices designed to make other passengers more aware of the needs of wheelchair users. It might also have to conduct surveys to find out when people are likely to travel and what their needs are so that it can do what it can to provide an appropriate number of buses for everyone.
I am not, at the time of writing, a wheelchair user. I do follow equality issues especially to do with public transport as I often need to take use of priority seats. This sort of judgment could lead to clearer equality law, but as traditional, I’ll not be holding my breath. It is of course a great shame that we can't just rely on "common decency and respect" so people have to fight these sorts of cases.