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Published on Thursday, October 17, 2019

Travel companies accused of failing disabled travellers









Travel providers could be leaving themselves open to legal action from disabled travellers, says David Bott, senior partner of Bott and Co. Here, he outlines what airlines, tour operators and other travel providers need to do to make sure disabled travellers are properly cared for.


 


Basic rights
Being able to travel without limits should be possible for everyone, whether able bodied or not. Unfortunately this wish often doesn't translate into reality. I've heard of cases that are frustrating or inconvenient for holidaymakers with reduced mobility, but the other end of the spectrum sadly sees disabled customers being treated with utter disdain by holiday providers, often being subjected to degrading circumstances


Such huge lapses in care for disabled people that wish to enjoy their holiday, just like anybody else, are completely unacceptable. Airlines and tour operators should strive to put a disabled person in the same position as somebody that is fully able, and they are obliged to do so by law. The essence of the role of a tour operator is to make sure that a holiday is suitable for the individuals it is booked for, this encompasses the location, facilities available and nearby attractions. The same, if not more emphasis should be put on ensuring that a holiday is suitable for a person with a disability.

Disabilities are different for individual people and so care should be taken at the point of booking to ensure that travel providers have a full understanding of the customers disabilities and what this means in terms of needs for adjustment when abroad. Bott and Co have come across many cases of neglect by holiday providers towards people with reduced mobility. Holidays should be for everyone, but we're seeing cases where customers have made a tour operator aware of their needs from the offset, yet experienced a holiday that was completely unsuitable or had key aspects ruined due to lack of care and awareness.

Lack of communication
It seems that one element may be lack of communication. At the time of booking, tour operators should ensure that there is an option for the customer's disability to be noted if they so wish so that all the necessary steps can be put in place to safeguard themselves but most importantly guarantee the customer is as comfortable as possible throughout their trip, from the flights to in-resort.


Another element that is contributing to this issue is that third party contractors and suppliers are not being given the necessary information by the holiday provider, resulting in people with specific needs being let down or not being able to enjoy every aspect of the trip. An example of this is that operators have a duty to tell airlines if their customer needs assistance at the airport or on board an aircraft. Ultimately the tour operator has a responsibility to ensure that the customer gets what they booked in line with their specifications, for example, someone in a wheelchair should be provided with a disabled access room on the ground floor and a welfare taxi transfer.

An air carrier or its agent/tour operator should not deny somebody a flight reservation or special assistance at the airport due to a disability. Passengers with reduced mobility should be the first on the plane, and the last off the plane, so they feel at ease and experience minimal disruption. I've heard all too many cases in which airlines have neglected the needs of disabled passengers, some of which strike me as downright inhumane, such as incident concerning the BBC's Frank Gardner, who was left on the plane after all other passengers had departed because special assistance staff failed to turn up.

With this in mind, passengers with reduced mobility should play their part in ensuring that everything is being done to make their travel as seamless as possible, forewarning an airline of any special requirements at least 48 hours prior to traveling, so that airlines have no excuses to fall back on.

Legal rights
It's paramount that people with reduced mobility aren't discouraged from booking a holiday because of fears around accessibility, and it's equally important that, should the worst happen, holidaymakers are aware of their legal rights. EC1107/2006 protects disabled persons and persons with reduced mobility when airborne, outlining that 'an air carrier shall not refuse, on the grounds of disability or of reduced mobility; to accept a reservation for a flight and to embark a disabled person or a person with reduced mobility at such an airport'. Boosting passengers' rights further is Article 11 of EU Regulation 261/2004, which states: "Operating air carriers shall give priority to carrying persons with reduced mobility and any persons or certified service dogs accompanying them, as well as unaccompanied children." Similarly, Article 9 of the Regulation states that persons with reduced mobility should be given the right to care as soon as possible.


The Equality Act 2010
Section 29 of the Equality Act 2010 is crystal clear on the point that disabled holidaymakers deserve first and foremost to enjoy a holiday just as an able-bodied person would. It states: "Where a physical feature puts a disabled person at a disadvantage in comparison to a person who is not disabled, there is a requirement to take steps as is reasonable to avoid the disadvantage".
Examples of these 'steps' that tour operators must take to make a disabled person as comfortable as possible include putting them in a ground floor room if necessary, or in a room with a designated disabled-access bathroom.
If there is any infringement to the Equality Act, a claim can be made. An interesting caveat to the Act is that 'injured feelings' can be claimed for, so the Act not only takes into account accessibility and physical needs, but also doesn't diminish feelings of upset and disappointment.

Campbell v Thomas Cook Tour Operations Ltd 2004 highlighted how injured feelings can provide significant grounds for a claim. The customer, who suffers with arthritis and struggles with walking and standing, had booked a holiday in Tunisia, but at Monastir Airport, she was treated badly at the hands of Thomas Cook staff. Having told a staff member that she was in pain and couldn't stand for much longer, her worries were dismissed as she was told that nothing could be done, and there was no attempt to source a wheelchair. The customer then found the pain too unbearable, so she sat on a luggage weighing platform, but was soon asked to stand. Fellow passengers were helping her rather than airline staff, and after a four hour ordeal, she was exhausted, with aches in her legs and hips.
When she returned to the airport the next day, she was anxious after her ordeal and then endured bouts of projectile vomiting. After a lengthy legal process against the tour operator for discrimination, the customer was awarded £7,500 in compensation for injury to feelings. The Judge said that compensation was awarded as Thomas Cook representatives failed to show "common humanity" and make any reasonable adjustments for Campbell. This case in particular was significant as it sets a precedent that despite the discrimination taking place outside of Great Britain, the Equality Act 2010 still applies due to the package holiday being purchased in Britain. It's fantastic to see the law in action protecting passengers with reduced mobility - but note that the limitation period for the Equality Act is six months, which means that a dissatisfied holidaymaker wishing to make a claim must do so within six months of returning home.

Is the holiday fit for purpose?
Legislation that is firmly on the side of holidaymakers is the Consumer Rights Act 2015. Under this, there is an explicit obligation from the 'trader' to supply a service with 'reasonable care and skill'. Tour operators are expected to advise consumers about appropriate holidays and accommodation in line with their individual needs, including reduced mobility or disability. A consumer could be owed damages if a holiday isn't 'fit for purpose' if all parts of the contract, such as the promise of ramped access or mobility equipment, have not been delivered.

A breach of contract?
The Package Travel and Linked Travel Arrangements Regulations 2018 is beneficial to holidaymakers as it dictates that a package travel contract must not be altered without the express agreement of the traveller before the contract's conclusion. Aspects of a holiday that cannot be altered includes the location and main features of the accommodation, travel itinerary and excursions included in the package's price, whether the trip is generally suitable for persons with reduced mobility and the suitability of the trip taking into account a traveller's needs. Something customers could ask themselves is: "Did the airline or tour operator make 'reasonable adjustments' to make sure I was comfortable?" If the answer to this is no, a travel provider might be exposed to a claim.

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