UK: Rights of Disabled Airline Passengers

The long established legal position is that if a carrier enters into a contract of carriage but subsequently refuses to perform the carriage (before its commencement) then the carrier will be liable for breach of contract. However, in line with IATA recommendations, most airlines include in their conditions of carriage a right to refuse carriage to a passenger on the basis of "reasonable discretion" in line with specified circumstances. One such reservation is where the physical state of the passenger is such that he requires special assistance, causes discomfort to other passengers, or involves any hazard or risk to himself or to other persons. The approach must therefore be a subjective one. While few such cases exist in the UK, the law in this area is somewhat more developed in the US. These cases generally involve instances where one passenger has been violent in some way but, in one case, it was held that it was reasonable to refuse carriage to an infirm 92 year old whom it was thought would require excessive assistance from flight attendants during carriage.

On an EU level, the European Disability Forum recently criticised carriers for unjustifiably purporting to rely on security reasons to discriminate against disabled passengers by denying boarding or restricting seat allocation. They allege that in some cases disabled passengers are even required to sign a declaration that they will not trouble other passengers, which is blatantly discriminatory. Notwithstanding this criticism the vast majority of airlines (and airports) have signed up to a voluntary European Air Passenger Rights Charter which includes provisions relating to better access to facilities for disabled passengers. The Charter covers a range of non-legally binding commitments to deliver a sufficient standard of service to disabled air passengers. In a nutshell, the consultation paper states that if a person with reduced mobility requires a booking and has notified his/her needs in advance (within the specified time) an airline will be forbidden from refusing that booking or subsequently refusing carriage except for valid "safety or operational" reasons (e.g. lack of space or suitable toilet in an aircraft, inadequate boarding facilities at a small airport, etc). On the other hand, if the passenger notifies the airline after the deadline or fails to do so at all, the carrier would only be obliged to make best efforts to accommodate that person and would have the right to refuse carriage for valid safety/operational reasons. In such a case however, the airline is obliged to state the reasons for refusal. We understand that a consultation exercise will be operational until 30 October 2002 with the aim of setting a minimum standard, via community legislation, with which all airlines would have to comply.

In the UK, the Disability Discrimination Act 1995 makes no specific reference to carriage by air (although some general provisions contained therein may apply). This prompted the Department of Transport to produce a consultation draft (in April 2001) with the aim of applying the 1995 Act to air travel. The draft sets out a voluntary code of practice aimed at improving the accessibility of air travel to disabled people while ensuring that the health and safety of both staff and other passengers is not compromised and is intended to compliment the charter of rights being developed by the European Commission. It covers all aspects of air travel, from accessing information through to arrival at final destination and sets out a series of principles that the industry (i.e. not just carriers) should adhere to in making provision for disabled people. One concession for carriers however (in line with the European initiative) is that they should be able to insist on advance notice where the passenger requires assistance. Ideally, notice should be given at the time of booking but, where possible, a minimum of 48 hours notice should be given to the airline. In cases such as last minute deals, the airline should do all that it reasonably can in the circumstances to accommodate requirements. The code of practice also deals with seat reservations and, in this regard, there is an issue of whether the IATA contractual terms are compatible with European Community law, namely directive 93/13 on unfair contract terms in consumer contracts. As far as disabled passengers are concerned, the fact that the seat allocation made at the time of the booking does not create any right for the passenger, not even to a similar seat, is a particular problem.

The code of practice states that disabled people should be permitted to pre-book a seat, although it should be made clear to the passenger that this arrangement cannot always be guaranteed owing to operational difficulties such as change of aircraft. In such circumstances, the code states that every effort should be made to find a comparable seat.

The Department of Transport advise that the draft is currently undergoing last minute checks with the final version expected to be published at the end of September 2002. The Department advise that since airlines have been very co-operative to date they have no immediate plans to mandate it through legislation, although they will continue to monitor the position.

Recent developments on this issue certainly indicate that should an airline receive sufficient advance notice of disabled passenger’s requirements then it would not be able to refuse carriage simply because of the special assistance required when dealing with such a passenger. To do so might amount to discrimination. Assuming that the disabled passenger is given notice and reasons however, it would be valid to argue that operational reasons cannot permit carriage. Further, if circumstances arise on the day of travel which would have an adverse effect on the safety of other passengers then the airline would have the right to refuse carriage.

It should be noted that the law is still developing in this regard and the EU consultation exercise will not be completed until after 30 October 2002. It would therefore be wise to monitor the European consensus after this date to ensure that the proposals have been agreed. At that stage, the Commission will decide whether community legislation is required to set out provisions to prevent unjustified refusal of bookings or carriage to people with reduced mobility, while respecting safety and operational requirements.