by Frank Jarvis
Published: 11 Mar 2020
Frank Jarvis, a solicitor in our Scotland team, explains how some transport operators are unlawfully discriminating against disabled passengers.
In 2018, our Is Scotland Fairer? report on the state of equality and human rights in Scotland found that disabled and older people continue to face problems accessing all forms of public transport.
One of our current Priority Aims is that “public transport supports the economic and social inclusion of disabled people and older people”. To help bring this about we recently launched a project to support legal claims by individuals who experience these problems.
We believe that in some of these cases, transport operators may be failing in their duties under the Equality Act 2010. Below are some examples of the type of problems which could give rise to claims of unlawful discrimination.
In 2016/17, we supported the case of Paulley vs FirstGroup  UKSC 4, in which the Supreme Court held that bus operators must end ‘first come, first served’ policies and do more to cater for wheelchair users.
However, advice agencies and user groups tell us that the decision has not yet produced significant change ‘on the ground’.
If wheelchair users experience substantial disadvantage as a result of a provision, criteria or practice on the part of a bus company, then the bus company may be failing in their duty to make reasonable adjustments.
Reasonable adjustments are not a case of ‘one size fits all’ and making one reasonable adjustment will rarely be sufficient to remove the barriers faced by all passengers with disabilities.
While some coaches are fitted with wheelchair lifts to assist passengers’ boarding, many of these lifts can only be used by passengers using a wheelchair. This means that further adjustments may be needed to ensure that passengers who are unable to manage the steep steps used to board the vehicle, but who don’t use a wheelchair, are nevertheless able to use the service.
The cost of a reasonable adjustment must be met by the service provider and should never the passed on to the service user. Some disabled passengers need a personal assistant with them on journeys as a reasonable adjustment.
So transport operators who make the disabled passenger pay the full cost of their personal assistant’s travel could potentially be in breach of their reasonable adjustment duties.
The increasing use of technology in booking systems can create particular barriers. Operators who, without adequate justification, require the disabled passengers use specific and less convenient procedures to book their travel may be indirectly discriminating.
Finally, it is important to remember that the barriers faced by people with disabilities using public transport are not limited to mobility issues.
Accessibility of journey information (including timetables and announcements) can be problematic for those with sight or hearing impairments, as well as potentially for those with cognitive impairments, mental health conditions or neuro-diverse conditions.
These are just a few examples to give a sense of the range of problems which might be addressed by claims under the Equality Act, and which we may support through our current legal support project. Advisers and solicitors who are supporting clients with problems of this type can find out more about the legal support project and apply for support.