The legal future of accessible aviation for all
Unless you have travelled by air with a disabled friend or colleague it is unlikely you will have been exposed to the many procedures that are required to take a simple flight.
Flying as a wheelchair user can sometimes be an undignified and dangerous experience, in which we as customers are paying for the terrible privilege. There are several protections in place for the disabled consumer, and regulation EC 1107/2006 has greatly improved our experiences by requiring airports to offer better assistance. However, there is still some conversation needed between the passengers' needs and our expectations, and what is mandatory in law or a guideline.
Many highly visible events where the processes have failed have been shared on social media. Thousands of disabled and older passengers successfully travel each year and it's the bad news which hits the headlines. Unfortunately, these events put many disabled people off flying.
Many passengers have been returned a broken wheelchair on arrival at their destination (as I have). The Montreal Convention sets a maximum of £1,200 (SDR) for compensation airlines can pay towards replacing a broken or damaged wheelchair, but some power wheelchairs can cost upwards of £25K. And passengers have been manually handled without permission (as I also have) and had their body pulled in such a way to incur pain (yep, me too).
On one trip, when my wheelchair was damaged on arrival in Thailand, I spent three days using an airline chair while my wheels were repaired locally, in the hope they would last the duration of my holiday. On another occasion my wheelchair was damaged beyond repair and the airline was very prompt in accepting full responsibility and compensating me for the full cost of my wheelchair - there was still a three month wait so a custom chair could be built. Prompt compensation is not always the case however, and depends on the airline.
The transfer from wheelchair to aisle chair to airline seat is also an opportunity to mishandled by poorly trained staff. I was once using the aisle chair and rather than push/pull the aisle chair frame towards the exit, the member of staff put their hands behind my lower legs to pull the aisle chair along. Outrageous and completely wrong in every way.
NDAs and out of court settlements
When things go wrong it often has a massive personal impact to the paying passenger and getting a prompt and reasonable outcome is sometimes extremely challenging, as multiple parties are handling valuable wheelchairs and mobility equipment, no one group wants to accept liability internally. This often causes complaints to take an extended period of time and leads passengers to take legal action against the airline involved to ensure they are fully compensated for damage to their property and, on occasion, themselves. Many airlines choose to settle out of court, with the associated non-disclosure agreement, to protect their reputations and because of this there are very few UK public cases to refer to.
One person who decided not to accept an out of court settlement that included a gagging clause is disability rights campaigner and businessman Michael Holden MBE. Mr Holden took British Airways to court in April 2017, over the loss and damage of his wheelchair during a family holiday to the US. Mr Holden represented himself in court and the company accepted that it was responsible for the loss and damage of Michael's wheelchair and a settlement was agreed. British Airways have since been very committed to improving the passenger experience and are now driving training on disability equality and accessible aviation within their organisation.
Another example which proved to be a significant case in 2013 where the Equality Act 2010, the Montreal Convention and Regulation (EC) No 1107/2006 are not wholly aligned, can be seen in Stott v Thomas Cook. In this case the UK Supreme Court dismissed an appeal arising from a failure by an air tour operator to see that proper provision was made for the needs of a disabled passenger, contrary to the requirements of the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (SI 2007/1895).
This is a very interesting case as in her concurring judgment, Lady Hale considered it disturbing that the Convention excludes damages claims for breaches of individuals' fundamental rights. Mr Stott brought a claim under that the Thomas Cook's treatment of him was in breach of its duty under European Commission Disability Regulations, in that they had failed to make all reasonable efforts to give his wife a seat next to him. The claim also demanded damages including aggravated damages. The Supreme Court accepted that there was a breach of EC Disability Regulations because Thomas Cook had discriminated against Mr Stott in the way he was treated. However, no compensation for Mr Stott's injured feelings was awarded as the Court was constrained by the universal and exclusive operation of the Montreal Convention.
Any disabled person with a visible or hidden disability will have their own disappointing experiences.
Thankfully, the aviation industry has made huge strides in recent years in improving the customer experience and these events are less frequent, but they remain very impactful for the passengers involved and can put future passengers off flying. This film by the Queen Elizabeth Foundation and the Civil Aviation Authority is an excellent example of a good passenger experience.
There is a very real desire and commitment to address these issues by all the parties involved and the Department for Transport and Civil Aviation Authority are demanding change for the better, which will bring aviation into the 21st century for the active, mobile, disabled and growing ageing population who want to see the world and take part in the joy of travel.
Green paper consultation Aviation 2050
In December 2018, the government opened consultation on its Aviation 2050 programme, which includes an Inclusive Transport Strategy. When the results are published, they will be of great personal and professional interest to me as a regular commercial airline passenger and wheelchair user.
The Inclusive Transport Strategy
The Inclusive Transport Strategy sets out the government's plans to make the transport system across all modes work better for disabled people through:
- Awareness and enforcement of passenger rights - raising awareness of the obligations on transport operators, the processes for raising concerns or complaints, and working with regulators to hold operators to account
- Staff training - ensuring that transport staff (frontline and managerial) understand the needs of disabled people with physical, mental, cognitive and sensory impairments, and can provide proper assistance
- Improving information - ensuring that transport operators provide travel information in formats that all passengers can easily access and understand, before and during the journey
- Improving physical infrastructure - ensuring that vehicles, stations and streetscapes are designed, built and operated so that they are easy to use for all and that disabled people are involved from the outset in their design
- The future of inclusive transport - Ensure that technological advances and new business models provide opportunities for all and that disabled people are involved from the outset in their design
New aviation passenger charter
The Aviation Passenger Charter, announced December 2018, ties into the Inclusive Transport Strategy. A major focus of the charter centres on improving the flying experience for passengers with disabilities, and providing clarity on the assistance that should be provided to people travelling with reduced mobility and hidden disabilities.
The government has worked with industry, including disability advisory groups, to put forward a number of proposed measures including:
- strengthening accessibility standards for airports and introduce new standards for airlines
- ensuring better training for airport and airline employees
- raising awareness among disabled passengers of their rights to assistance and how to obtain it
- improving storage standards for wheelchairs and waiving limits for compensation payments
- working with industry to achieve the long-term goal of passengers being able to fly in their own air-worthy wheelchairs
The charter measures are all achievable and many can be addressed immediately by being solution focussed, with collaboration across the airline industry, disability groups and government; innovation; creative cabin, wheelchair and process design; and excellent and consistent staff training in equality. My longer-term goal is to assist the airlines, airports, and wheelchair manufacturers in getting a wheelchair space in the aircraft cabin, as this will addressing many of the issues powerchair users face when flying. Giving the disabled passenger choice to remain in or transfer from their chair.
Passenger safety remains number one goal for the industry, but this should be coupled with consistent education among aviation organisations. They need to recognise the money that disabled people/older people and their families have to spend, and seize this growing business opportunity by making it possible for everyone to experience the joy and freedom of air travel with dignity and safety.
Views expressed in our blogs are those of the authors and do not necessarily reflect those of the Law Society.
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