When accessibility is not considered in operational or policy design, disabled people will always need to ask, feeling like they are inconveniencing others or asking for too much. This regularly creates an immediate tension and anxiety for disabled people, as well as positions all reasonable adjustments as an add-on and a deviation from the standard provision.
What Paulley decided
In the case of FirstGroup Plc v Paulley [2017] UKSC 4, the Supreme Court was asked to rule on the argument that a policy without effective implementation is a failure to provide reasonable adjustments. In short, the appellant, a wheelchair user, attempted to board the bus but was refused because a passenger in the wheelchair space declined a request to move a child’s buggy in order for Paulley to board. On the face of it, the tension here is between a wheelchair user and a parent with a buggy. However, when we look closer the real tension is between FirstGroup’s policy and how the driver, in practice, is expected to implement it. The protected characteristic of pregnancy and maternity covers pregnancy and a defined maternity period, not parenthood generally. Even if she were protected, that characteristic carries no proactive statutory duty comparable to the duty to make reasonable adjustments for disabled people. Where FirstGroup’s policy was clear on who has priority access to the space, what was less clear was how the driver was expected to enforce this, if at all.
Having a gap between what the driver is expected to do but cannot lawfully do, such as compel a non-compliant passenger to move or force them off the bus, is a real tension. It is not sufficient for FirstGroup to have a policy where drivers do nothing more than request that a non-disabled person vacate the wheelchair space. In the judgment it was conceded that in some circumstances a non-wheelchair user may reasonably refuse to vacate the space, but similarly that where a non-wheelchair user’s refusal was unreasonable it would be unjustifiable for any bus company to have a policy that did not expect some further step from a bus driver. The ruling does not go so far as to expect enforcement and forcibly removing the non-disabled person from the wheelchair space; what it does consider is the way in which the driver failed to take reasonable steps to uphold the rights of the disabled passenger.
There are many reasons why a bus driver cannot and likely should not enforce or evict non-wheelchair users in this space. A duty to provide reasonable adjustments means taking all reasonable steps to remove a barrier to access but it does not and cannot guarantee an outcome. The case therefore draws the line between guaranteed outcomes and the provider taking all reasonable steps to ensure the implementation of the policy. As with reasonable adjustments for organisations, what is meant by all reasonable steps is defined in law and considers the context in which policies must be applied. In this case, the push for enforcement, i.e. the driver forcing other passengers off the bus, is incompatible with the authority of bus drivers. The difference between what Paulley expected the driver to do and what he actually did is unresolved. What the court actually decided on sees both extremes and seeks to establish a middle path.
Implications beyond buses
The implications of this case have wide-reaching and long-lasting effects. The space between adjustments and outcomes is in many cases wide. What must be understood here though is that a policy that sits on a shelf is not enough, and that words without action will fail to remove barriers for disabled people. Take the example of parking bays designated by a local authority for disabled residents. The authority must take all reasonable steps to ensure the bay is used for its designated purpose, but short of building a bollard it cannot guarantee the outcome for the people it is reserved for. Just like with a bus operator though, it must do more than put up a sign. Decisions about budgets for parking enforcement, strategies targeting misuse hotspots, and mechanisms for acting on reports from residents should all be subjected to rigorous review through Equality Impact Assessments and meaningful engagement with disabled residents.
Why ambiguity persists
Frustratingly for a disabled person trying to get on the bus, or park their car in an accessible space, they are unlikely to see the high-level organisational decisions that seek to pit disabled people’s needs against the person with the buggy, or the driver nipping into the corner shop. Policy designers will largely be unlikely to see the nuance and the impact that their decisions will have, and policies designed without rigour, that fail to consider clear guidance on reasonable steps for implementation, will fail unnoticed.
How conflict is outsourced
The Court’s own remedy is instructive. Having rejected a policy of asking and doing nothing further, Lord Neuberger set out what more might reasonably be expected. The driver should rephrase the request as a requirement, and, if that did not work, might consider holding the bus a few minutes “with a view to pressurising or shaming the recalcitrant non-wheelchair user to move”. As a legal minimum this is modest and carefully bounded. As an operational instruction it is something else. The answer to a design failure is a public standoff, staged at the front of a bus, refereed by someone with no authority to conclude it.
This is what displacement looks like in practice. The obligation is discharged not by changing the vehicle, the schedule, or the conditions of carriage, but by generating enough social pressure to move a passenger who cannot lawfully be moved. That pressure has a cost, and the cost does not sit with the operator. It sits with the two people in the aisle, and disproportionately with the one who has to be visibly the reason the bus is not moving.
When policy fails, conflict becomes the enforcement mechanism. Where a policy is silent on how a right is to be realised, it is realised, if at all, by whoever is willing to insist on it in front of an audience. That converts a statutory entitlement into a test of temperament, and sorts disabled passengers by how much friction they are prepared to absorb on a given day. It is not a distinction the Equality Act draws.
Passive compliance is a choice
Regulators and legislators can support organisations not by owning the rules but by providing clear guidance on their implementation. These organisational policy decisions are where the rubber of law and regulation meets the road. It should not be up to disabled people to take these issues to court to assert their rights, to other passengers to adjudicate a competing claim they were never given the rules for, or to bus drivers to make complex ethical, legal, and practical decisions under pressure of time and angry passengers.