' LORD NEUBERGER: (with whom Lord Reed agrees) --- This appeal concerns the lawfulness of a bus company's policy in relation to the use of the space provided for wheelchair users on its buses.' The factual and procedural background 2.At around 9.35 in the morning of 24th' February, 2012, Mr. Doug Paulley, who is a wheelchair user, arrived at Wet her by bus station, expecting to catch the 9.40 bus ("the Bus") to Leeds. On arrival at Leeds he intended to catch the train to Stay bridge to meet his parents for lunch. The Bus was operated by a subsidiary of First Group PLC ("FirstGroup"), which is the parent company of a group of companies which operates a total of about 6,300 buses. The Bus was equipped with a lowering platform and a wheelchair ramp. The Bus also had a space (a "space") for wheelchairs. which included a sign that read "Please give up this space if needed for a wheelchair user."
3.When Mr. Paulley started to board the Bus, the driver, Mr. Britcliffe, asked him to wait because the space was occupied by a woman with a sleeping child in a pushchair. The space had a sign with the familiar designation of a wheelchair sign, and in addition it had a notice ("the Notice") saying "Please give up this space for a wheelchair user". Mr. Britcliffe asked the woman to fold down her pushchair and move out of the space so that Mr. Paulley could occupy it in his wheelchair. She replied that her pushchair did not fold down, and refused to move. Mr. Paulley then asked whether he could fold down his wheelchair and use an ordinary passenger seat. Mr. Britcliffe refused that request, because there was no safe way of securing the wheelchair and the Bus had to take a rather winding route.
4.As a result, Mr. Paulley had to wait for the next bus, which left around 20 minutes later. The consequence of this was that Mr. Paulley missed his train at Leeds, and had to take a later train which arrived at Stalybridge an hour later than he had planned.
5.Although Mr. Paulley was a frequent bus user, this was the first time that he was unable to get on a bus because someone refused to vacate the space.
6. Mr. Paulley issued proceedings in the Leeds County Court against FirstGroup for unlawful discrimination against him on the ground of his disability. His claim was based on the proposition that FirstGroup had failed to make "reasonable adjustments" to its policies contrary to Section 29(2) of the Equality Act, 2010. The claim came on before Recorder Isaacs.
7. The evidence showed that First Group's published policy about wheelchairs and their users at the time of the incident was this:-- "As part of our commitment to providing accessible travel for wheelchair users virtually all our buses have a dedicated area for wheelchair users; other passengers are asked to give up the space for wheelchairs. ... If the bus is full or if there is already a wheelchair user on board unfortunately we will not be able to carry another wheelchair user. ... Wheelchairs do not have priority over buggies, but to ensure that all our customers are treated fairly and with consideration, other customers are asked to move to another part of the bus to allow you to board. Unfortunately, if a fellow passenger refuses to move you will need to wait for the next bus."
8.By the time of the trial, the published policy had changed somewhat, and it was in these terms:- -- "As part of our commitment to providing accessible travel for wheelchair users virtually all our buses have a dedicated wheelchair area for wheelchair users; other passengers are asked to give up the space for wheelchairs. ...
' Wheelchair users have priority use of the wheelchair space. If this is occupied with a buggy, standing passengers or otherwise full, and there is space elsewhere on the vehicle, the driver will ask that it is made free for a wheelchair user. Please note that the driver has no power to compel passengers to move in this way and is reliant on the goodwill of the passengers concerned.
Unfortunately, if a fellow passenger refuses to move you will need to wait for the next bus."
' The evidence before the Recorder established that Mr. Britcliffe had followed First Group's policy, by asking the woman with the pushchair to move from the space, but, when she refused, by taking the matter no further, Mr. Birtwhistie, FirstGroup's UK Bus Projects Manager. told the Recorder that "in the main" passengers complied with a request to give up the space. Mr. Birtwhistle also explained why First Group had adopted the policy set out in paras 7 and 8 above. The company had carried out a review of the way it communicated with its customers, and found that many of them thought that it was putting uptoo many peremptory notices on buses. FirstGroup had concluded that it would be better policy to use more pleasant and engaging notices which were friendlier to customers. So far as First Group's policy about the space was concerned, Mr. Birtwhistle said that it was designed to cause the customer to think "Somebody else needs this space. I will be reasonable. I will move away from it." The policy was intended to be non-confrontational and placatory.
10.The Recorder found for Mr. Paulley and awarded him 5,500 damages. First Group appealed to the Court of Appeal who allowed its appeal - [2015] 1 WLR 3384. Mr. PauIley now appeals to this Court.
The legal requirements in relation to public service vehicles 11.Mr. Paulley's claim was based on his allegation that First Group had failed to comply with its duties under the Equality Act, 2010, and it is therefore appropriate to set out the relevant provisions of that Act. However, before doing so, I should refer to earlier legislation applicable to public service vehicles, as it was relied on by the Court of Appeal, and it was also canvassed in the arguments before this Court.
12.The Bus was a "public service vehicle" for the purposes of the Public Passenger Vehicles Act, 1981 ("the 1981 Act"), and it was therefore required to comply with Schedule 1 to the Public Service Vehicles Accessibility Regulations, 2000 (SI 2000/1970) ("the Accessibility Regulations"). Paragraph 2 of that Schedule required the Bus to have at least one wheelchair space on the lower deck, which had to comply with para 3 or 4. The Bus complied with para 4, which contains detailed specifications as to the size and other characteristics of the space, and also envisages that a folding or tip-up seat may be placed in the space, and requires there to be a notice on or near such a seat stating "Please give up this seat for a wheelchair user". The Bus was also required to carry a sign adjacent to the space which showed a representation of a person in a wheelchair.
Paragraph 3 of Schedule 2 to the Accessibility Regulations requires there to be at least four seats designated "as priority seats for use by disabled passengers", and a sign on or near a priority seat "indicating that disabled persons have priority for the use of that seat".
13.Section 25 of the 1981 Act also enables regulations to be made authorizing the driver of a bus or, at his request, a police constable to remove a passenger infringing what are known as the Conduct Regulations. namely the Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers) Regulations 1990 ("the Conduct Regulations") (SI 199011020), which were made under these powers.
14.Para 5(2) of the Conduct Regulations provides.-- "A driver, inspector and conductor shall take all reasonable steps to ensure that the provisions of these Regulations relating to the conduct of passengers are complied with."
15.Para 6(1) of the Conduct Regulations states that no passenger shall, inter alia:--- "(b) put at risk or unreasonably impede or cause discomfort to any person travelling on or entering or leaving the vehicle
(k) remain on the vehicle, when directed to leave by the driver, inspector or conductor on the following grounds:
(i) that his remaining would result in the number of passengers exceeding the maximum seating capacity or maximum standing capacity ..' been in breach of any duty to Mr. Paulley under regulation 12 to direct that the lady with the buggy leave the bus.
144.Insofar as the Recorder concluded that FirstGroup owed Mr. Paulley a duty to make adjustments to what is called a provision, criterion or practice (or "PCP") under which he would have priority as a wheelchair user and that, in appropriate circumstances, another person using the wheelchair place who was not using a wheelchair would be required to leave the bus, I thought that his case was not established under regulation 12. Assuming that those were the only relevant regulations governing the duty of the defendant ("the company") in a case of this kind it seemed to me that the only way in which it could be said that it was in breach of duty to the claimant would be as follows. First, the company should have ensured that its drivers considered whether, in circumstances like these, a person with a child and a buggy could (in the words of regulation 12(3)) readily and reasonably vacate the space by moving to another part of the bus. For my part, I do not think that it was sufficient for the driver (or the lady concerned) to refuse to wake the child up if, as appears to have been the case on the facts, he or she was asleep. Moreover, it was not, in my judgment, sufficient for the driver to do no more than ask the lady to move out of the wheelchair space.
145.In para 5 of his judgment the Recorder set out the company's policy, both at the time of the incident and at the time of the trial. The first was in these terms:--- "Wheelchairs do not have priority over buggies. but to ensure that all our customers are treated fairly and with consideration, other customers are asked to move to another part of the bus to allow you to board. Unfortunately, if a fellow passenger refuses to move you will need to wait for the next bus." That was on the website but was changed because "the wheelchair policy on the website did not reflect the policy" adopted by the company. It was replaced by this: "Wheelchair users have priority use of the wheelchair, space. If this is occupied with a buggy, standing passengers or otherwise full, and there is space elsewhere on the vehicle, the driver will ask that it is made free for a wheelchair user. Please note that the driver has no power to compel passengers to move in this way and is reliant on the goodwill of the passengers concerned.
Unfortunately, if a fellow passenger refuses to move you will need to wait for the next bus.'
146.It is not now in dispute that neither of those terms is a satisfactory PCP. The question is whether the bus company made reasonable adjustments to the PCP. The reason that it is not now contested that those adjustments are not reasonable is that both leave the decision whether to vacate the space 'and to move to another part of the bus entirely to the person using the wheelchair space. Under them, if that person refuses to move, that is the end of it. For the reasons given by Lady Hale and Lord Kerr and (I think) by Lord Neuberger, Lord. Toulson and Lord Reed, I agree that the failure to make further adjustments to the PCP was contrary to the law as it stood when the Regulations were introduced.
147.For these reasons, I would hold that the company was in breach of duty owed to Mr. Paulley in failing to take more steps than it did in response to his request to use the wheelchair space in his wheelchair. In short, I agree with Lord Toulson and Lord Neuberger that it should have gone further than it did. See, in particular para 83 of Lord Toulson's judgment, with which I agree. I further agree with him, and indeed with Lord Neuberger, that the appeal should be allowed, at least to the extent that they propose. I also agree in this regard with Lady Hale and Lord Kerr.
148.The question then arises, or would arise, whether there is any basis upon which the order for damages should be sustained. It is accepted by both Lord Neuberger and Lord Toulson that this alternative case was advanced by the claimant at first instance. I agree that the claimant should be permitted to take the point, since (whatever may have been said in the Court of Appeal), all parties were in a position to argue the point before this Court. The next question is whether, if the bus driver had taken further steps to put pressure upon the lady with the buggy, there was a sufficient prospect that she would have moved from her place to another part of the bus sufficient to satisfy the relevant test of causation.
149.Lord Kerr concludes that, if the policy had been more authoritative; and the lady had been told that she had to move and that the company's policy was that she must do so, there was at least a real prospect that she would have moved. I agree. It seems to me to be a reasonable inference from the facts that it was practicable for her to move to another part of the bus. It was not the evidence of the driver that there was nowhere else she could go. His requests were consistent only with the conclusion that it was both reasonable and practicable for her to move elsewhere on the bus. There is no evidence that she was faced with only two alternatives, namely staying where she was in the wheelchair space or leaving the bus. In these circumstances I agree with Lord Kerr that there is at least a real possibility that, if the position had been explained to her in clear terms, she would have moved elsewhere on the bus, even though it would have involved waking the child. I would go further. It seems to me that, if the problems and the policy had been put clearly to her, it is more likely than not that she would have agreed to do so.
150. The question then arises whether, if the driver had told the lady that she must move and if, as I think, it is more likely than not that she would have done so, it is clear that there was somewhere else in the bus she could (and would) have gone to. It is common ground that the driver asked the lady if she would move elsewhere in the bus in order to accommodate the wheelchair. It is I think clear that there was somewhere else for her to go on the bus. The further question then arises whether the buggy would have been able to be folded up. Again, it seems to me to be more likely than not that the buggy was foldable. First, although there may be some exceptions, buggies are ordinarily foldable. Secondly, the driver's evidence (in his statement) was that he asked the lady if she would fold her buggy up so that Mr. Paulley could travel on the bus. In his statement he added at paras 45 and 46:-- "45. The lady pointed out to me that her child was fast asleep within the buggy and that she had no intentions of waking the child or removing the child from the buggy.
46.It was clear to both me and Mr. Paulley that the lady was refusing to assist."
' The driver did not say that the lady told him that it was not possible to fold up the buggy.
151. When he was asked whether there was anywhere else for the buggy and child to go if they moved out of the space, the driver said No. However, he was then asked whether there was any alternative to asking the person with the buggy to get off the bus. He said that the alternative was to fold down the buggy if possible, if the buggy would fold down". It is true that he was then asked 'And they had refused to do that?" and he replied yes. There is however no evidence that he heard the lady say that As I see it, he inferred that from the reply recorded in his statement.
152. Ironically perhaps, the only evidence which might be said to support the conclusion that the buggy in question could not be folded up is in the evidence of Mr. Paulley. In his statement he said at para 24 that he appreciated that "the wheelchair space is a good place for people to park their pushchairs, but they can at least fold them up". That suggests that he thought that the buggy could be folded up. However, earlier in his statement he said at para 14 that, while he was boarding the bus, the following exchange took place between the driver and the lady with the buggy:--"Of his own initiative, the driver turned to the lady and asked if she would fold it [i.e. the buggy] down so that I could use the wheelchair bay. The lady (who was on her mobile phone) responded by saying that the pushchair did not fold down and so she wouldn't move."
153. It is true that in the Court of Appeal Lewison.LJ at para 3 accepted that account, although he did not advert to the driver's evidence set out above. I am bound to say that it seems unlikely to me that it was not possible to fold the buggy and that it is more likely than not that the true reason for her attitude was the inconvenience of moving the child and the buggy when the child was asleep. which was essentially the reason she gave.
154. If those conclusions are correct, Mr. Paulley would be entitled to succeed even if the only relevant provisions were contained in regulation 12 of the Conduct Regulations. However, Lady Hale and Lord Kerr place considerable weight upon the position as at the date-of the incident. Lady Hale has described the Regulations and their provenance in detail in her para 96, which she puts in their context in her paras 93-95 and 98. Importantly, she also stresses the importance of Section 21ZA of the Disability Discrimination Act, 2005 in her para 98. As she says, that Section provided for the application of Sections 19 to 21 of the DDA 1995 in modified form to providers of transport services. I agree with her that in passing that Act, Parliament must have concluded that the earlier regulations were not sufficient to enable disabled passengers to enjoy the same access to public transport as is enjoyed by non-disabled passengers. As she says, those Sections provide that, where providers of transport services had a policy, practice or procedure which would make it impossible or unreasonably difficult for disabled persons to make use of a service which they provided to other members of the public, it was their duty to "take such steps as is reasonable in all the circumstances of the case for him to take in order to change that practice, policy or procedure so that it no longer has that effect".
155. I now, appreciate that the critical point in this appeal is not whether there was a breach of regulation 12 of the Conduct Regulations. As Lady Hale says at para 101, the issue agreed between the parties for the purpose of this appeal is a simple one, namely whether the Recorder was correct in concluding that the company was in breach of the Equality Act, 2010. In her paras 99 to 109 Lady Hale convincingly explains why the answer to that question is yes. The essential points which have persuaded me are these, which are really no more than those made by Lady. Hale.
156. The bus company as the service provider must comply with three requirements set out in paragraph 2(1) of Schedule 2 to the 2010 Act. The first is in Section 20(3) as modified by the Schedule. It reads:-- "The first requirement is a requirement, where a [PCP] of A's puts disabled persons generally at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage."
' As Lady Hale explains in para 99, failure to comply with that requirement is a failure to make reasonable adjustments under Section 21(1) and A discriminates against a disabled person if A fails to comply with that duty in relation to that person under Section 21(2), This is a prospective duty, owed to disabled persons generally, to take proactive steps to' meet their needs, and if an individual suffers as a result then that failure amounts to discrimination against him,
157. I agree with the general points made by Lady Hale in para 100. In particular, the position under the 2010 Act is different from that under the Conduct Regulations. Disabled people are a special case. Their needs are to be treated differently from those of others, including those with buggies. As Lady Hale puts it in paras 101 and 102, at the time of the incident the company's policy was that wheelchair users had no priority over buggies and that infected both the content of the notices and the approach to enforcement. It should have been made clear to passengers that wheelchair users had priority over others, who should have been required to vacate the wheelchair space. I agree with Lady Hale that disruption and confrontation would be unlikely.
158. As indicated above, it is my view that it is more likely than not on the facts here that, if the lady had been required to move, as opposed to merely being asked to .do so, she would have done so. I am also of the view that if, contrary to my view of the facts of this case, a buggy cannot be folded down, the PCP should have been adjusted to make it clear that, if necessary to enable a wheelchair user to use the wheelchair space, the buggy user (and not the wheelchair user) must get off the bus. Only in this way will the statutory policy of priority for wheelchair users be carried out.
159. In reaching this conclusion, I do not disagree with the points made by Lady Hale in para 105. As she says, while non-disabled people are not entitled to the same treatment as disabled people, especially after the 2010 Act, the adjustments to be expected for disabled people must be reasonable ones, and there will obviously be circumstances in which it is not reasonable to expect the space (or indeed the bus) to be vacated. However, this is not such a case.
' In conclusion, I agree in particular with the reasoning of Lady Hale and Lord Kerr. I too would allow the appeal. I also would answer the question posed, namely whether the company was in breach of the 2010 Act in the affirmative. I agree with Lady Hale that, whatever concession may have been made in the Court of Appeal, it cannot be just to deprive Mr. Paulley of the damages which the Recorder awarded him. As I say in para 148 above, all, parties were in a position to argue the point before this Court. I would therefore restore the order made by the Recorder.