Come fly with me

The Equality and Human Rights Commission is the designated complaints handling body in Great Britain under the European regulation on the rights of disabled persons and persons with reduced mobility when travelling by air (regulation 1107/2006).

The regulation establishes rules for the protection of and provision of assistance to all such passengers, including 'the making of all reasonable efforts to arrange seating to meet the needs of individuals with disability'. The commission receives around 4,000 calls a year about access to air travel. The most common type of complaint is consistently about difficulties with seats needed by disabled passengers.

The provisions in the regulation are brought into force by the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (SI 2007/1895). They say that claims may be made, and that 'for the avoidance of doubt, any damages awarded in respect of any infringement of the regulation may include compensation for injury to feelings whether or not they include compensation under any other head'.

The issue came before the courts earlier this month in two cases. In Stott v Thomas Cook Ltd [2012] EWCA Civ 66, the claimant was a permanent wheelchair user and needed a seat that would allow his wife to attend to his personal needs. The law requires Thomas Cook to arrange this, but the company did not. Nor did the cabin crew attempt to ease the couple's difficulties when they flew to Greece in 2008. Mr Stott came to the EHRC, which supported his claim in the county court.

The judge said: 'I have little difficulty in concluding that Mr Stott's rights'¦ were infringed'¦ I am not convinced that [the defendant has] demonstrated any real insight into the seriousness of their failings.' Mr Stott's claim of discrimination was upheld.

In Hook v British Airways plc [2012] EWCA Civ 66, Mr Hook faced difficulties during flights both to and from Cyprus because he was not allocated bulkhead seats that can better accommodate his disability.

British Airways made a successful application to the county court to strike out his claim for an award of damages. This was on the basis that the claim could not be maintained because of the Montreal Convention and its domestic application. The convention provides strict liability for claims of personal injury or death, and lost, damaged or delayed baggage.

The judges in both cases found that damages for injury to feelings on the basis that the UK regulations were not compatible with the convention and thus such remedy was not available to the claimants.

Drawing the battle lines

The appeals were heard together in the Court of Appeal, supported by the EHRC. The commission submitted for the claimants that the courts below erred in misconstruing or disregarding the UK regulations and the EC regulation, making them subordinate to immaterial restrictions on claims in the convention.

The requirement to arrange appropriate seating is central to both Mr Hook and Mr Stott's initial complaints. The EHRC supported both appellants, and the secretary of state for transport intervened to support them. The striking feature of the Court of Appeal decision on 7 February 2012 is that airlines do not have to compensate passengers even when the court rules that their legal rights have been breached.

The UK regulations clearly contemplate actions for damages including for injury to feelings. The EC regulation contemplates 'ordering the payment of compensation' as a possibility. Moreover, European Union law requires that member states provide effective, proportionate and dissuasive remedies for breaches of European Union law rights. Regulation 9 of the UK regulations meets those criteria.

To interpret the EC regulation in the way contended for by the defendants '“ the airlines '“ deprives all disabled travellers and travellers with reduced mobility the opportunity of an effective remedy, in accordance with fundamental principles of EC law. It has the same effect for all claims arising from bad treatment on a flight, be they for gender, age, religion and belief, sexual orientation or race.

In his Court of Appeal judgment Lord Justice Maurice Kay says 'the battle lines are drawn' between the Montreal Convention on one side and the regulation and the UK regulations on the other. While the last battle was lost, the EHRC is considering an appeal to the Supreme Court which may lead to a different outcome. A referral in this case to the Court of Justice of the European Union would lead to some resolution. Currently passengers have no possibility of legal redress, and further action may yet secure the regulation's aim: to protect people against discrimination.