Disabled scooter user humiliated by Train Manager for using disabled space on GWR service.

[bnm]

Once again, this is only guidance, not gospel. The TOC’s policy is what is relevant and what the guard should have enforced.

Leaving the space empty then? I'd entertain the argument that it would be just about okay to enforce that policy in a dispute over access to the disabled space between two disabled travellers, one using a scooter and one in a wheelchair.

But to enforce that policy to move a disabled persons mobility aid for a pram? Absolutely not acceptable. Tanyalee Davis was boarded and settled into the disabled space at the start of the train's journey. She was advised that she may have to move her mobility aid later in the journey if a wheelchair user boarded. She was okay with that.

I have said more than once that I hope further clarification within the industry comes from this incident. If we have industry bodies telling TOCs that the legislation treats mobility scooters as 'wheelchairs' then the TOCs need to heed that advice and change their guidance. If not, the next time it might not be a media storm, but expensive (financially and reputationally) appearances in court.

We've already seen one case, involving a disabled traveller versus a mother and child, go all the way to the Supreme Court, where a public transport provider's policy, and guidance to staff, were found to be unlawful. Do we need another? Perhaps we do to continue hammering home the message to hidebound public transport providers and their staff.

 

[CeeJ]

But the reality is that nobody is going to be able to enforce this. In the Clapham Junction example given above commuters are never going to volunteer to get off a train, potentially making themselves late for work, in order for a wheelchair to be boarded.

This would be governed by the First Group v Paulley (2017) case. On page 2:

However it was not enough for FirstGroup to instruct its drivers simply to request non-wheelchair users to vacate the space and do nothing further if the request was rejected. The approach of the driver must depend upon the circumstances, but where he or she concludes that the refusal is unreasonable, some further step to pressurise the non-wheelchair user to move should be considered, such as rephrasing the request as a requirement (especially where the non-wheelchair user could move elsewhere in the bus) or even a refusal to drive on for several minutes

So a guard/platform staff should try a number of lawful tactics (pressure, refusing to depart on time, moving them to a different part of a train), and may go even further, to enforce the wheelchair space. Though also in your example, if the train is absolutely packed, then refusing to move from the wheelchair space may not be considered unreasonable.

 

[Ambient Sheep]

The issue has been formalised. The RSSB reported on mobility scooter access to trains in December 2017. They sought clarification on the law from the Office of Rail & Road and the Department for Transport. Those bodies said:

The Department for Transport (DfT) and Office of Rail and Road (ORR) have indicated that there is no clear basis for differentiating between wheelchair and mobility scooter devices, provided they meet the ‘reference wheelchair’ specification (Length: 1200mm, Width: 700mm, Height: 1350mm, Laden weight: 300kg, and have similar manoeuvrability characteristics.

Full document attached.

I find this fascinating, given that a similar distinction apparently DOES apply for buses, where electric wheelchairs and small mobility scooters limited to 4mph categorised as "Class 2" devices are allowed, but larger mobility scooters limited to 8mph categorised as "Class 3" are not.

It's tempting to speculate that the "Class 3"s are so designated precisely because they don't meet that "reference wheelchair" size specification you mention above, but then again I have a friend with a Class 3 that just looks like a heavy-duty motorised wheelchair and I'm pretty sure it doesn't exceed any of those dimensions; it's purely down to the speed I think.

Confusing; more research required I think!

But to get back to the point, I find it interesting that trains don't make the distinction (since October last year) yet buses, last I heard, do. Perhaps that too will be changing, if it hasn't already.

 

[Bletchleyite]

Except there doesn't. The law is pretty unequivocal on that. The wheelchair user has priority. End of discussion.

False. If the train is full such that no more passengers may board, a wheelchair user may also not board.

If there is space for either an ambulant passenger or one in a wheelchair but not both, there is no defined priority.

However, if all can board, the wheelchair user does have priority over the wheelchair area.

 

[Deafdoggie]

I find this fascinating, given that a similar distinction apparently DOES apply for buses, where electric wheelchairs and small mobility scooters limited to 4mph categorised as "Class 2" devices are allowed, but larger mobility scooters limited to 8mph categorised as "Class 3" are not.

It's tempting to speculate that the "Class 3"s are so designated precisely because they don't meet that "reference wheelchair" size specification you mention above, but then again I have a friend with a Class 3 that just looks like a heavy-duty motorised wheelchair and I'm pretty sure it doesn't exceed any of those dimensions; it's purely down to the speed I think.

Confusing; more research required I think!

But to get back to the point, I find it interesting that trains don't make the distinction (since October last year) yet buses, last I heard, do. Perhaps that too will be changing, if it hasn't already.

The reason for buses is the weight the ramp can take, and the maneuverability in and out of the space. Therefore they have to be smaller and lighter

 

[Ambient Sheep]

The reason for buses is the weight the ramp can take, and the maneuverability in and out of the space. Therefore they have to be smaller and lighter

Oh I'm sure. I can totally understand the distinction; there's no way some of those huge scooters would make it onto a bus.

Just found it interesting that the RSSB document didn't even mention the different classes. I guess strictly speaking it doesn't need to, given it's making them ALL equivalent to electric wheelchairs (providing weight and dimensions are met), but seemed curious to my slightly weird mind anyway!

 

[bnm]

False. If the train is full such that no more passengers may board, a wheelchair user may also not board.

A 'full' train should not have non-disabled people standing in an area reserved for the disabled in the first place. If they are, then they are required to move if a disabled person subsequently requires it. Signage makes this clear.

If you occupy that space when not entitled to then I'd say you take the risk of having to vacate it.

 

[bnm]

Oh I'm sure. I can totally understand the distinction; there's no way some of those huge scooters would make it onto a bus.

Just found it interesting that the RSSB document didn't even mention the different classes. I guess strictly speaking it doesn't need to, given it's making them ALL equivalent to electric wheelchairs (providing weight and dimensions are met), but seemed curious to my slightly weird mind anyway!

The 'reference wheelchair' dimensions are key.

 

[Deafdoggie]

A 'full' train should not have non-disabled people standing in an area reserved for the disabled in the first place. If they are, then they are required to move if a disabled person subsequently requires it. Signage makes this clear.

Good luck enforcing that! And should a train leave able-bodied passengers behind because the wheelchair space has to be kept free on the off-chance of someone wanting it later?

But even if the wheelchair space is left free, you can get a lot of passengers all around it, in the vestibule, etc, who all have to detrain to get a wheelchair on, then reboard. During this they have to go onto the platform causing obstructions and other hazards. It isn't ideal, there is no easy solution.

 

[bnm]

Analogies are often shot down here, but consensus on this forum is that you shouldn't occupy 1st Class if you are not entitled to. Should a disabled space be any different?

On train sign attached.

 

[pt_mad]

Good luck enforcing that! And should a train leave able-bodied passengers behind because the wheelchair space has to be kept free on the off-chance of someone wanting it later?

But even if the wheelchair space is left free, you can get a lot of passengers all around it, in the vestibule, etc, who all have to detrain to get a wheelchair on, then reboard. During this they have to go onto the platform causing obstructions and other hazards. It isn't ideal, there is no easy solution.

The fact is it's a legal obligation that the wheelchair space must be available for a wheelchair in the event they are ready to board and one isn't already there. Fact. And this has been proven and there's case law relating to the wheelchair user who couldn't board the bus due to it being full with pushchairs. And he successfully sued the bus company I believe.

The staff will make a reasonable effort to enforce this on behalf of the wheelchair user. Even if the train is full on arrival, if customers are standing in the wheelchair space or luggage is stored there they will ask passengers to kindly make space please. If people have to step off to make space for the wheelchair user to board then fine. People can then board when the wheelchair user is situated in the dedicated wheelchair space.

Any customer who refused to move from the wheelchair space would be politely informed that it is legally for sole use of a wheelchair user when required and point to the sign above the space which says 'you must vacate this space for a wheelchair user', which backs up this claim.

Anyone who refused further would be told a little more firmly that they need to move from the space if they expect to travel.

Now if someone still refused after all that, and i dont think the other passengers would give them (the awkward passenger) their support by this point, then the guard could either hold up the train to pressure the passenger to do the right thing or would potentially have to apologise profusely to the wheelchair user and explain that they sincerely tried their absolute best to vacate the space and disruptive passengers are refusing to move and it's likely the wheelchair user may feel the guard has done their absolute best within their enforcement powers and await the next train .Then claim a delay repay.

Should non wheelchair passengers vacate the wheelchair space if a wheelchair wishes to board from the platform? Absolutely yes. And I think this is probably TOC policy across absolutely all the tocs. The guard can't physically remove anyone but they can ask politely, more firmly and can inform passengers of the legal right of the wheelchair user.

If they've exhausted all reasonable methods to move the standing passengers by instruction then the guard will have genuinely done their best. And the fault then lies with the disruptive passengers who are rudely refusing to move. The wheelchair user will have recognised the TOC staff have done all they reasonably could and I don't think they'd blame the staff if they genuinely tried their best.

 

[6Gman]

The fact is it's a legal obligation that the wheelchair space must be available for a wheelchair in the event they are ready to board and one isn't already there. Fact. And this has been proven and there's case law relating to the wheelchair user who couldn't board the bus due to it being full with pushchairs. And he successfully sued the bus company I believe.

The staff will make a reasonable effort to enforce this on behalf of the wheelchair user. Even if the train is full on arrival, if customers are standing in the wheelchair space or luggage is stored there they will ask passengers to kindly make space please. If people have to step off to make space for the wheelchair user to board then fine. People can then board when the wheelchair user is situated in the dedicated wheelchair space.

Any customer who refused to move from the wheelchair space would be politely informed that it is legally for sole use of a wheelchair user when required and point to the sign above the space which says 'you must vacate this space for a wheelchair user', which backs up this claim.

Anyone who refused further would be told a little more firmly that they need to move from the space if they expect to travel.

Now if someone still refused after all that, and i dont think the other passengers would give them (the awkward passenger) their support by this point, then the guard could either hold up the train to pressure the passenger to do the right thing or would potentially have to apologise profusely to the wheelchair user and explain that they sincerely tried their absolute best to vacate the space and disruptive passengers are refusing to move and it's likely the wheelchair user may feel the guard has done their absolute best within their enforcement powers and await the next train .Then claim a delay repay.

Should non wheelchair passengers vacate the wheelchair space if a wheelchair wishes to board from the platform? Absolutely yes. And I think this is probably TOC policy across absolutely all the tocs. The guard can't physically remove anyone but they can ask politely, more firmly and can inform passengers of the legal right of the wheelchair user.

If they've exhausted all reasonable methods to move the standing passengers by instruction then the guard will have genuinely done their best. And the fault then lies with the disruptive passengers who are rudely refusing to move. The wheelchair user will have recognised the TOC staff have done all they reasonably could and I don't think they'd blame the staff if they genuinely tried their best.

I think the above is a full and masterly explanation.

Of course, it still raises some difficult issues and doesn't cover the alleged circumstances of this particular incident.

 

[Tetchytyke]

If there is space for either an ambulant passenger or one in a wheelchair but not both, there is no defined priority.

Yes there is. The wheelchair user has priority. The wheelchair user also has priority over other disabled people.
Case law has established that.

The wheelchair user already in the wheelchair space CERTAINLY has priority over a pram user who boards at a later station.

 

[Llanigraham]

A 'full' train should not have non-disabled people standing in an area reserved for the disabled in the first place. If they are, then they are required to move if a disabled person subsequently requires it. Signage makes this clear.

If you occupy that space when not entitled to then I'd say you take the risk of having to vacate it.

How are you going to enforce that "rule"?

 

[Tetchytyke]

But no, I certainly wasn't implying that.

Glad to hear it!

 

[Bromley boy]

Yes there is. The wheelchair user has priority. The wheelchair user also has priority over other disabled people.
Case law has established that.

The wheelchair user already in the wheelchair space CERTAINLY has priority over a pram user who boards at a later station.

The case cited above specifically considers the point about asking able bodied passengers to leave in order to accommodate a wheel chair, and states that there is no such requirement.

Analogies are often shot down here, but consensus on this forum is that you shouldn't occupy 1st Class if you are not entitled to. Should a disabled space be any different?

On train sign attached.

Yes because first class is dealt with by railway bylaws. Disabled spaces (AIUI) are not and are essentially voluntary.

You couldn’t be fined for travelling in a disabled space even if you (selfishly) refused to leave when asked.

 

[bnm]

Yes because first class is dealt with by railway bylaws. Disabled spaces (AIUI) are not and are essentially voluntary.

You couldn’t be fined for travelling in a disabled space even if you (selfishly) refused to leave when asked.

"13. Unauthorised access and loitering

(1) No person shall enter or remain on any part of the railway where there is a notice:

(i) prohibiting access; or
(ii) indicating that it is reserved or provided for a specified category of person only, except where he belongs to that specified category."

I'd say that that byelaw, backed up by signage is sufficient to place a legal duty on an able-bodied person to vacate a disabled area if it is required by a disabled person. Of course, if that's not enough then refusing a reasonable request to vacate, made by a railway employee, is also an offence.

 

[JN114]

Of course, if that's not enough then refusing a reasonable request to vacate, made by a railway employee, is also an offence.

That’s the crack of a can of worms opening if I ever heard one!

 

[bnm]

Tanyalee Davis has returned to the UK and she today met with Dan Panes, GWR's Head of External Communications and other senior GWR managers.

https://twitter.com/TanyaleeDavis/status/1019939424061284352

Tanyalee has also been in TV and news studios today recounting her experience.

https://twitter.com/thismorning/status/1019986476057145345
https://twitter.com/5_News/status/1020003355949584384

Congratulations to GWR for so quickly recognising the damage this could cause their brand.

Well done to Dan Panes and others for arranging to meet Tanyalee Davis so soon after the incident. That shows, to me, just how serious GWR are about the issues raised by this incident.

Now, of course, today's news is tomorrow's fish wrapper, but I do hope GWR (in fact, all TOCs) make changes to their policies and staff guidance and training to recognise that disabled mobility scooter users have as much right to occupy a disabled space on a train as a wheelchair user. Subject to the 'reference wheelchair' dimensions of course. Such guidance is already out there from the RSSB, backed up by the ORR and DfT who say the Equality Act 2010 doesn't and won't differentiate. So, neither should TOCs. No blanket 'scooter bans'. No 'permit schemes'. Fair and equitable treatment for all disabled users of mobility aids.

 

[mrcheek]

incredible how after 13 pages people are still claiming she was sat in a disabled space

 

[Bletchleyite]

Yes there is. The wheelchair user has priority. The wheelchair user also has priority over other disabled people.
Case law has established that.

The wheelchair user already in the wheelchair space CERTAINLY has priority over a pram user who boards at a later station.

For the wheelchair space, absolutely. For boarding the train generally (if there was space for one passenger only), I see no reason why they would.

 

[pt_mad]

The case cited above specifically considers the point about asking able bodied passengers to leave in order to accommodate a wheel chair, and states that there is no such requirement.



Yes because first class is dealt with by railway bylaws. Disabled spaces (AIUI) are not and are essentially voluntary.

You couldn’t be fined for travelling in a disabled space even if you (selfishly) refused to leave when asked.

Look at it this way though. What would the vast majority of the public rather the TOC do? And bear in mind the media attention which has come out of this situation on GWR.
Would they rather the TOC assist the wheelchair user and find them a spaceby asking g people to move where they otherwise wouldn't be able to board?

Or would they rather the TOC and staff leave wheelchair users to their own devices and if the space is occupied by persons, luggage, prams or anything else then the wheelchair user isn't able to travel on that train?

Nobody is going to criticise the TOC or their staff for requesting passengers vacate the wheelchair space for a wheelchair user. It's probably what the vast majority of law obiding travelers would want the TOC to do to help people.

However, if the TOC ignored this and said it wasn't their duty and if no space available then no travel, they are making themselves liable for a whole lot of criticism, potential bad publicity and flack on social media, and complaints.

Guard helps wheelchair user, no complaints likely to be made and most passengers understanding. Guard refuses to help wheelchair user, well no good is going to come from that is it?

It's obvious which the sensible way to handle it is.

 

[Bromley boy]

"13. Unauthorised access and loitering

(1) No person shall enter or remain on any part of the railway where there is a notice:

(i) prohibiting access; or
(ii) indicating that it is reserved or provided for a specified category of person only, except where he belongs to that specified category."

I'd say that that byelaw, backed up by signage is sufficient to place a legal duty on an able-bodied person to vacate a disabled area if it is required by a disabled person. Of course, if that's not enough then refusing a reasonable request to vacate, made by a railway employee, is also an offence.

Fair enough, that seems pretty clear.

It’s down to the issue of enforceability. It seems pretty clear from the case law on here that a transport operator has discharged its duty to make reasonable adjustments so long as people are asked to leave with no requirement to compel them to leave (albeit it does seem that an offence could be made out by refusing to vacate).

I wonder if anyone has ever been prosecuted in this situation.

 

[Bromley boy]

Look at is this way though. What would the vast majority of the public rather the TOC do? And bear in mind the media attention which has come out of this situation on GWR.
Would they rather the TOC assist the wheelchair user and find them a spaceby asking g people to move where they otherwise wouldn't be able to board?

Or would they rather the ticeaves wheelchair users to their own devices and if the space is oppupied by persons, luggag, prams or anything else then the wheelchair user isn't able to travel on that train?

Nobody is going to criticise the TOC or their stAff for requesting passengers vacate the wheelchair space for a wheelchair user. It's probably what the vast majority of law obiding travelers would want the TOC to do to help people.

However, if the TOC ignored this and said it wasn't their duty and if no space available then no travel, they are making themselves liable for a whole lot of criticism, potential bad publicity and flack on social media, and complaints.

Guard helps wheelchair user, no complaints likely to be made and most passengers understanding. Guard refuses to help wheelchair user, well no good is going to come from that is it?

It's obvious which the sensible way to handle it is.

Absolutely.

I’m not for a minute suggesting that staff shouldn’t do their best to help disabled travellers wherever possible.

The problem unfortunately is that many people today are extremely selfish and unhelpful and there’s a limit on how much can be done in practice if people refuse to vacate a space.

 

[bnm]

incredible how after 13 pages people are still claiming she was sat in a disabled space

I'm looking for the subtext in this post but don't wish to make assumptions. Could you expand on the point?

 

[pompeyfan]

I haven’t read the first 10 pages of this thread, but having watched the video that Tanyalee and her partner have uploaded of the 2nd encounter with the guard, I can’t help but feel that his actions were misplaced, but not malicious, and I’m saddened to see that he’ll be hung out to dry and likely lose his job over this incident where it would appear that he was trying to keep everyone as satisfied as possible.

His actions may well be illegal by definition but I don’t see them as spiteful. If you put any number of guards in a similar situation, I don’t think the guard involved would be the only one, after all he was trying to provide customer service to the parent of the baby. I’m sure hindsight is a wonderful thing.

Has it been established what exactly the guard should have done in that situation? I assume the mother should have been left on the platform to wait for the preceding service? Has Tanyalee and her partner made comment on the mother with pram?

 

[Bromley boy]

Such guidance is already out there from the RSSB, backed up by the ORR and DfT who say the Equality Act 2010 doesn't and won't differentiate. So, neither should TOCs. No blanket 'scooter bans'. No 'permit schemes'. Fair and equitable treatment for all disabled users of mobility aids.

I can’t agree with you here.

The guidance does not change the underlying law, which (the guidance itself states) remains silent on mobility scooters and does not absolutely require that they be accommodated. Albeit from a common sense perspective there is little practical difference between a scooter and a wheelchair in many situations.

It is right (and lawful) that TOCs should be able to distinguish between between mobility scooters and wheelchairs - for example to prevent the situation where a mobility scooter user refused to fold it thereby preventing a wheelchair passenger from boarding.

 

[bnm]

The problem unfortunately is that many people today are extremely selfish and unhelpful and there’s a limit on how much can be done in practice if people refuse to vacate a space.

Many are. I totally agree. And it doesn't help when their actions are backed up by people in authority and by others defending the actions of said authority figure.

Ultimately there is legal recourse. Doug Paulley used it. Others may well in future. And if that means prosecuting a few able-bodied self entitled then I'm all for it.

 

[bnm]

How are you going to enforce that "rule"?

The judgement in Doug Paulley v FirstGroup is a good starting point.

 

[Bromley boy]

The judgement in Doug Paulley v FirstGroup is a good starting point.

But remember what that case is actually dealing with. It’s considering at what point a travel company (a bus company in this case) can be said to have discharged its duty under disability discrimination legislation. That point appears to be asking people to move from a disabled area and then taking further action (if reasonable), such as delaying a service, but stops short of compelling people to leave if they refuse.

That’s separate from the question of whether there’s any offence committed by people refusing to move from a disabled area. That case doesn’t make their selfish actions illegal per se (although liability might arise elsewhere, such as under railway bylaws, as per your earlier link).