Roads v Central Trains Ltd.

LORD JUSTICE BUXTON: I will ask Lord Justice Sedley to give the first judgment.

Mr Roads, a resident of Norwich who is disabled and dependent on an electric wheelchair for mobility, has difficulty in gaining access at Thetford railway station to platform 1, the eastbound Norwich line. Whether he has arrived from Norwich and wishes to cross the track for the return journey, or whether he has gone into Thetford and now wishes to return to Norwich, the only access is from the forecourt on the south side of the station, where the ticket office is located. From there, self-evidently he cannot use the footbridge, and the alternative half-mile route east along Station Lane, passing under the track and returning west to platform 1, is negotiable only with excessive difficulty and risk in his wheelchair.

Mr Roads contends that Central Trains, the lessees of the station, are required by law to provide a suitably adapted taxi to transfer him by the Station Lane route in his wheelchair. Central Trains contend that by going west to Ely, Mr Roads can cross in safety to the Norwich line for his return journey, and that by making this provision they have discharged their duty to him.

Negotiation having failed to resolve the issue, Mr Roads brought proceedings under the Disability Discrimination Act 1995 ("the DDA") against Central Trains Ltd as the material service provider. On 6 May 2004 Judge O'Brien at Norwich County Court rejected the claim. Carnwath LJ gave permission to appeal.

Judge O'Brien concluded that it was not reasonable in the circumstances of the case for Central Trains to make such provision. It is against this finding that Mr Roads appeals, challenging both the way in which the judge reached it and the sustainability of the finding itself. Central Trains cross-appeal, contending that the judge overlooked an antecedent question, which was whether it was unreasonably difficult for disabled persons generally, not just Mr Roads, to use the alternative route unaided.

Although it will be necessary to refer to other provisions, the key provisions are these. Section 21:

The majority of the judge's findings are not in dispute. This appeal therefore proceeds on the footing:

There is one further element of fact which may well make this case unique. In the course of the pre-trial correspondence, Mr Roads' solicitors wrote to Central Trains' solicitors:

The logic of the proposal (even after Mr Coppel's explanation of it) is not as readily apparent to me as it seems to have been to those instructing him, who replied:

In the result, the claim and this appeal have fallen to be conducted on the artificial assumption that the Norwich taxi would come cost-free, eliminating one of the factors which, as §4.22 of the Code of Practice issued pursuant to section 53 of the Act reminds us, would ordinarily have a bearing on what is reasonable and what is not.

It is desirable first to say something about the cross-appeal. Manifestly no single feature of premises will obstruct access for all disabled persons or - in most cases - for disabled persons generally. In the present case, for instance, the footbridge is not likely to present an insuperable problem for blind people. The phrase 'disabled persons' in section 21(2) must therefore be directing attention to features which impede persons with one or more kinds of disability: here, those whose disability makes them dependent on a wheelchair. The reason why it is expressed in this way and not by reference to the individual claimant is that section 21 sets out a duty resting on service providers. They cannot be expected to anticipate the needs of every individual who may use their service, but what they are required to think about and provide for are features which may impede persons with particular kinds of disability - impaired vision, impaired mobility and so on. Thus the practical way of applying section 21 in discrimination proceedings will usually be to focus the question and the answer on people with the same kind of disability as the claimant.

The personal right created by section 19 of the DDA operates by fastening a cause of action on to the section 21 duty if the effect of a breach of the duty is "to make it impossible or unreasonably difficult for the disabled person to make use" of the service in question. Thus there is a double test, albeit both limbs use the same phraseology: first (in paraphrase), does the particular feature impede people with one or more kinds of disability; secondly, if it does, has it impeded the claimant?

There is a further question of the meaning and effect of section 21(2). What paragraph (d) requires the service provider to do is "provide a reasonable alternative method" of - in this case - access to the eastbound line. Central Trains' fundamental position was that the station at Ely afforded this, and that this was enough to satisfy the Act. But, as Mr Coppel fairly and rightly accepted, what is reasonable in this special field of law is not always straightforward. Where there is only one practicable solution, it may have to be treated as reasonable even if it is demeaning or onerous for disabled people to use it. If on the other hand there is a range of solutions, the fact that one of them, if it stood alone, would satisfy section 21(2)(d) may not be enough to afford a defence. This is because the policy of the Act, as I would accept, is what it was held to be by Mynors Ch (albeit by way of restricting the duty) in In re Holy Cross, Pershore [2002] Fam 1, §105: "to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large". While, therefore, the Act does not require the court to make nice choices between comparably reasonable solutions, it makes comparison inescapable where a proffered solution is said not to be reasonable precisely because a better one, in terms of practicality or of the legislative policy, is available. That was this case.

Against this backdrop, I agree that the judge should have addressed the question of impeded access in relation to wheelchair users as a class before asking and answering it in relation to Mr Roads. The two questions then were:

Both of these questions arise under section 21(2). If they are answered against Central Trains, the judge's findings entitle Mr Roads to succeed under section 19(1), which makes it:

It is not disputed that such a failure would amount to discrimination within the meaning set out in section 20.

Until 1994 there was a barrow-crossing over the track at one end of the platforms, which might have answered Mr Roads' problem subject to considerations of safety; but in that year Railtrack closed it. The only way from the south side of the station to platform 1 for those who cannot use the footbridge has since then been the Station Lane route. The sections of road making up that route are not all in Central Trains' occupation or under their control, so they cannot do anything about its surface. Instead they offer this solution: to take the train west to Ely where there are full facilities for wheelchair-dependent passengers, and to change to the Norwich line there. This option is provided free of extra cost, but it adds over an hour to the 36 minutes ordinarily required for a rail journey from Thetford to Norwich.

It is Mr Roads' case, in these circumstances, that when he wishes to travel back to Norwich from platform 1 at Thetford, and provided he has given them adequate notice of his requirement, Central Trains should make available to him a taxi adapted for carrying a wheelchair. The evidence before the judge was that no suitably adapted taxi is licensed in the Thetford area. The nearest one is in Norwich, from where it would have to come and to where it would normally return. It was this choice of solutions - a round trip through Ely or the summoning of a taxi from Norwich - that the judge had to make.

Mr Roads is a member of the management committee of the Norfolk Coalition of Disabled People. On their behalf he wrote to Central Trains in February 2002 about the lack of disabled access at Thetford, proposing a foot-crossing and an accessible toilet and offering to work with Central Trains on the problem. In April 2002 there was a meeting. Mr Roads put himself forward as a test case, but to make the point a group of disabled people came along. Neither the meeting nor subsequent correspondence produced any proposal from Central Trains which was satisfactory to Mr Roads and his committee, and these proceedings were consequently issued in October 2002.

To furnish appropriate evidence, Mr Roads gave notice of his intention to travel from Norwich to Thetford and back on a specified date. The letter asked for appropriate arrangements to be made to transport him between the platform at which he would arrive and the platform (platform 1) from which he would then return to Norwich, but there was no response. On the day, 4 December 2002, Central Trains had provided a ramp from the platform to the carriage, but no adapted means of getting from platform 2 to platform 1.

The judge was assisted, as he acknowledged, by honest and helpful witnesses on both sides (allowing for occasional hyperbole) and by well-presented submissions from counsel. In addition to the history briefly recounted above, he learnt that Central Trains had a written policy, approved by the Rail Regulator, for assisting disabled passengers but that they had inherited many stations with defects which they lacked the capital to remedy. They had therefore concentrated their resources on 'core assistance stations', of which Ely was one. At Thetford, disabled passengers could avoid difficulties by arriving - at least if they came by car - at the platform from which they were to depart. If this meant arriving at a platform - platform 1 - that lacked a ticket office, the fare could be paid without penalty on the train. Railtrack's successor, Network Rail, had refused for safety reasons to accept the reinstallation of a foot crossing at Thetford.

Central Trains' main witness, Christopher Hogan, pointed out that there was no evident reason why a passenger would want to travel to Thetford and then change trains to go back again; though the judge suggested that a passenger who had fallen asleep and overshot his or her station might need to do so. Mr Hogan estimated that a ramped bridge would cost about £750,000 to instal. A lift, he said, was not permissible on a largely unmanned station. He did not consider the Station Lane route a viable option for a person in a wheelchair. The solution was to go on to Ely and change there. Of Central Trains' 200 stations, about 20 shared Thetford's problem, though not the length of its detour.

Among the other evidence was that of Clifford Pitchers, the Thetford customer service assistant (once upon a time, I imagine, he would have been the stationmaster). He described how two youngish local residents, Mr and Mrs Griffiths, both dependent on wheelchairs for mobility and living to the south of the station, had for some five years been using Station Lane as a means of access to the Norwich platform. He also described the use of this route by users of manual wheelchairs.

The judge rejected a curious submission that the distribution of property rights between Central Trains and Network Rail was such that access between the two platforms was not a service provided by the former; and we have heard no more about it. He held - and this too is now unchallenged - that the layout I have described made it unreasonably difficult "for this claimant as a disabled person" to get by any of the available means to platform 1.

What is raised by way of cross-appeal is whether the judge would or should have reached the same answer if he had first asked, as he should have done, whether the road access made it unreasonably difficult - it clearly did not make it impossible - for disabled persons, specifically wheelchair users, to change platforms.

Mr Richard Lissack QC for Mr Roads submits in his skeleton argument that this question is irrelevant once it is found that the Station Lane route was unreasonably difficult for Mr Roads. I do not agree: Parliament has posed it as a separate and prior question for the reason given earlier in this judgment. I do accept, however, that it is not necessary, in order to trigger the section 21(2) duty, for the feature in question to cause unreasonable difficulty for all or most disabled persons: any significant impact on, say, wheelchair users as a class will in my judgment suffice. The question may often have to be answered without reference to direct evidence from which some kind of statistical analysis can be made: indeed the assembly of such evidence, whether pro or con, may well be invidious or arbitrary and therefore an inappropriate exercise to attempt. Judges are likelier to be assisted by their own appraisal and, where necessary, expert evidence.

This is how the judge decided whether Station Lane was unreasonably difficult for Mr Roads:

By far the greater part of this reasoning is general: it is reasoning about electric wheelchair access along Station Lane. At most of the points at which the claimant is mentioned the judge could equally well be speaking of wheelchair users. He considers the evidence about Mr and Mrs Griffiths, whose ability to cope relates principally to the objective section 21 question. He does towards the end take into account Mr Roads' particular build; but it would have been perfectly permissible to take into account instead the risks to a heavily built wheelchair user. Although, therefore, the judge found the issue finely balanced, I consider that his conclusion that Mr Roads would find it unreasonably difficult to use the Station Lane route is founded upon reasoning which is equally - and in one respect more - applicable to disabled persons, in this case wheelchair users, as a class. It follows that the judge would have answered the antecedent section 21(2) question in the same way had he addressed it as he should have done. It would be captious to allow the cross-appeal purely because he analysed the right materials under the wrong head.

The judge then turned to the key question of what steps, if any, it was reasonable for Central Trains to have to take in order to provide reasonable alternative access to platform 1. Having posed the choice which I have already described, he said this:

Mr Lissack makes a number of, in my view, valid points about this forensic exercise. First, the fact that other wheelchair users managed to negotiate the Station Lane route was not relevant at this stage of the case: it went only to the objective assessment of difficulty, and even in that context was consistent with yet other users being put off even attempting the Station Lane journey. Secondly, the policy of the DDA is not a minimalist policy of simply ensuring that some access is available to the disabled: it is, so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public. Thus access via Ely, while plainly relevant, is not by itself an answer. Thirdly, the fact that the major instances of difficulty given in evidence were generated in order to make the very point in issue is neither here nor there. If anything it tends to support the claim to the extent that, once the point of principle is established, the need to summon an adapted taxi from Norwich may well be rare. And one notes the judge's provisional view that if the local taxi service in Thetford (and arguably too, therefore, in nearby towns such as Brandon) had been able to provide the required transport, his decision on reasonableness might well have gone the other way.

Above all, it must be remembered that in pre-trial correspondence Central Trains had agreed that the cost of bringing an adapted taxi from Norwich would not be relied on in relation to the reasonableness of making the provision sought: hence the absence of any explicit reference to it in the material passage of the judgment. It needs also to be noted that Mr Lissack's case is predicated on Mr Roads' giving Central Trains sufficient notice of his coming journey to enable them to book the taxi to help him reach platform 1. Thus this case does not decide what it will be reasonable for Central Trains to do if a wheelchair user arrives at Thetford without any or adequate prior notice and asks for a taxi to be summoned from Norwich. In such a situation, with or without regard to cost, the comparative time element may be such that it is reasonable to expect the passenger to go via Ely.

In the light of these factors, Mr Lissack goes on to attack the judgment at two specific points. One is the judge's taking into account against the claimant the small scale of the problem. The other is his failure to consider what able-bodied passengers would make of the inconvenience of having to travel to Ely and back in order to change platforms. The fact that this was likely to be only an occasional problem made it more reasonable, not less (in Mr Lissack's submission), for Central Trains to solve it when it occurred by summoning an adapted taxi; and if the alternative of going round via Ely was an inconvenience that no able-bodied passenger would be expected to put up with, why (Mr Lissack asks) should Mr Roads? It is only, he submits, if the judge, despite the concession, took the cost of the Norwich taxi into account that he can have arrived at his conclusion that the measure sought by the claimant was unreasonable.

For Central Trains, Mr Philip Coppel submits that the scale of the problem lies squarely within the issues posed by section 21(2)(d), which directs attention to "all the circumstances of the case". These necessarily include, he submits, both the relative rather than absolute nature of the difficulty (and therefore the fact that other wheelchair users coped) and the infrequency of Mr Roads' encounters with the problem. The awkwardness of the round trip through Ely had been expressly considered in the judgment: "it adds a good hour whichever way one looks at it".

These competing submissions are not all mutually exclusive. The relative infrequency of the problem is no doubt relevant, but it may point towards the reasonableness, rather than the unreasonableness, of making special provision to meet it. I agree with Mr Lissack, however, that the relevance of the fact that some wheelchair users cope with the Station Lane route is logically spent with the finding that access is nevertheless unreasonably difficult for disabled people generally and for Mr Roads personally. It cannot be brought in a second time to reduce the standard of provision which it is reasonable to have to make to alleviate the difficulty.

I am satisfied that the judge must have been critically influenced, as for reasons peculiar to this case he ought not to have been, by the cost of fetching a taxi from Norwich. It was known to be a sum approaching £50, and if it had not been for the agreement to eliminate it from the case it might legitimately have proved decisive. One sees the issue rising very close to the surface when the judge speaks of arranging "for this specially adapted cab to drive all the way from Norwich to Thetford" and calls it "a most extraordinary, unusual and unreasonable set of circumstances", contrasting it with what he might well have decided had an adapted taxi been available in Thetford. But on the artificial assumption on which the case was proceeding that the taxi would be cost-free to Central Trains, and on the further assumption that they would have adequate advance notice of Mr Roads' requirement, it seems to me that the decision could only have gone in Mr Roads' favour. To require him to spend over an hour - perhaps well over an hour - travelling in the wrong direction and then back again when at no cost to Central Trains a taxi could be waiting to transfer him in minutes to the other side of the track at Thetford could not on any fair view, given the policy of the Act, be called a reasonable alternative method of reaching platform 1.

I would therefore allow the appeal and enter judgment for Mr Roads in the sum fixed by the judge of £1,000 general damages together with £97 special damages. I would add, since the case is supported by the Disability Rights Commission, that although it has made it appropriate to explore some significant aspects of the legislation, what it decides is likely to be of limited impact because of the peculiarity of the real or assumed facts on which both the judge below and this court have had to proceed.

LORD JUSTICE JACOB: I agree.

LORD JUSTICE BUXTON: I also agree. Section 21(2)(d) of the Act provides:

What is reasonable has to be judged here, as always, in all the circumstances of the case. Those circumstances include, in cases such as the present where there are competing solutions, the availability of the one solution when assessing the reasonableness of the other.

In this case therefore, as my Lord has stressed, when assessing whether the alternative method proposed by Central Trains, the Ely solution, was a reasonable method of making the service available, the judge had to have in mind the potential availability of the taxi solution; and that is indeed how the judge did approach the matter. But he rejected the taxi solution because, as he said at page 56B of his judgment:

True it is that the provision as described by the judge is elaborate and has some striking features, not least the return of the cab empty to Norwich. But the judge was in my view wrong, in the sense that he took irrelevant considerations into account in reaching the conclusion that he did.

There are two ways in which his judgment has to be criticised. First, the question is whether the steps under review are reasonable "for him" (that is to say, Central Trains) to take. Steps might be unreasonable for a person to take if they unreasonably impact on third parties. But in this case the steps did not. The taxi firm is obliged to drive from Norwich to Thetford, but far from that being inconvenient for them, it is all part of their business. The only inconvenience on the assumptions made in this case for Central Trains is the comparatively small amount of administration that will be required in finding out about Mr Roads' programme and calling up a taxi to fit in with that programme. Mr Coppel in argument very fairly accepted that that matter could not be described as an unreasonable inconvenience for his clients.

Second, like my Lord I am persuaded that the judge did take into account, albeit not mentioning it, the cost to Central Trains of making these arrangements. Had he not done so, there is in my view no other way in which he could have found that the arrangements were unreasonable for Central Trains. That is borne out by what he said at page 56F:

That observation could only be relevant to the cost of making the provision: the administration involved in getting a taxi from Thetford was no different from the administration involved in getting a taxi from Norwich. The judge should not have taken that consideration into account because, by agreement between the parties, it had been excluded from the equation in this case.

This was a case that turned on the reasonableness of arrangements made or proposed and it was very much a matter for the trial judge to assess, with the benefit of the evidence that he had. Normally this court would be most reluctant to interfere with the conclusion to which the judge came. But because he took into account two matters that I have listed that were not open to him to take into account, this court has to reconsider his decision. I would come to the same conclusion on it and for the same reasons as did my Lord.

I would only say one further thing. Had it been open to the judge to take into account the cost of these arrangements to Central Trains there might well have been much more to be said about this case, and much less likelihood that this court would find itself able to intervene. But that is not the case before us today. It may be the case before another court on a further occasion, when the matter will, I fear, have to be looked at de novo and not in the light of this present case.