Thursday, November 13, 2014

Indian Railways continues to drag its feet on making its stations accessible despite court rap

Written by Ruhi Bhasin | Mumbai | Posted: November 13, 2014 12:12 pm

Directing the railways to come up with a time-bound schedule to provide basic facilities for the differently abled by November 24, the Bombay High Court on Wednesday noted that a large number of suburban stations still did not been provide basic amenities like accessible toilets, railings, low ticketing counters and low-height water taps.

Justices A S Oka and A S Gadkari were acting on a bunch of petitions, including one submitted by NGO Disability Right Initiative represented by senior lawyer Gayatri Singh. The petitions highlighted the issue of raising the height of platforms at local stations and providing helipads near railway stations to airlift accident victims.

“As we invite discussions on raising the height of platforms, several people have lost their lives. We cannot spend so much time because railways cannot provide basic facilities. It is sad that the court has to monitor such matters,” the HC said.

On being informed that such facilities had been provided at only 22 stations,  the HC noted that the law required railways to provide such facilities for the differently abled at all stations.

While referring to the affidavits filed by Central and Western Railways, the court observed “We find that in cases of large number of suburban stations, basic amenities for the differently abled are not provided. We direct the railways to file an affidavit specifying an outer limit to provide such basic facilities like accessible toilets, ramps, low height ticketing counters and water taps at all station. Compliance of other facilities will be considered in the next hearing.”

The court has now asked the railways and the state government to file their affidavits by November 24. The next hearing in this matter will be held on  November 26.

“As far as directions to raise the height of platforms is concerned, substantial compliance has been made by Western and Central Railways. Also, tactile indicators should be put 18 inches from the edge to assist visually impaired people,” the court observed.

On the issue of constructing helipads along stations at 14 spots, the court stated that the government’s response in this matter was very vague. “From the urban development department, we have received very vague replies. It does not set out the exact nature of policy decision taken by the government in response to an earlier court order,” it said.

The HC had earlier directed the state government to decide on this issue by by November 5. “You may take time but say yes or no. When an outer limit has been set then the decision should have been made by now. If land is available, why do you require modification of development control regulations? If a particular spot is not available another can be provided,” the court observed.

Delhi Metro is not barrier free for travelers with blindness

Dear Colleagues,

This horrific incident with our friend Smriti Singh, is indicative of the fact how unsafe the Metro services has been all this while. Some time back our another visually impaired friend Ms. Sweety Bhalla, a senior employee at Food Corporation of India also suffered injuries when her feet got stuck between the space on the platform and the train coach. These are important reminders that Delhi Metro should immediately address the safety of its passengers. 

Shreya Roy Chowdhury,TNN | Nov 13, 2014, 03.30 AM IST

NEW DELHI: Smriti Singh, a visually impaired English teacher at Maitreyi College, fell on the tracks at Vaishali Metro station while trying to pick her way out of a train, unescorted, on November 5 (Wednesday). The 30-year-old's predicament—she's now laid up with 13 stitches on her head and a bad back—detracts from Delhi Metro's reputation for being fully modern and accessible. There are no barriers between the platform and the tracks at Vaishali and there was no assistant to receive her either. 

Singh, who frequently uses Metro to get to work, claims that assistance is often missing at Vaishali. She changes over to the Yellow line at Race Course station, switches to the Blue at Rajiv Chowk and rides it till the last stop at Vaishali. According to Metro's system, word of her arrival travels before her, or it should. "On that day, a student rode with me till Rajiv Chowk and there DMRC officials took my name and contact details. They were to inform the Vaishali staff so they could have assistance ready to help me off the train and out of the station once I arrived," recalls Singh. It's not anything new. "The people at the station know me," she says. 

She boarded the Blue line but once she got off at Vaishali, she found no assistant to guide her. "I waited and then started asking other commuters for help," she says. This too has happened before, but, on every occasion, someone had stepped forward. "This time no one came. I had gone a few steps when I fell straight on the tracks. There's a gap between the tactile strip and the platform as well and no barriers." The officials came running. They stopped the approaching train, pulled her out and had someone accompany Singh, who'd bled all over her kurta, to hospital. "Their ambulance didn't arrive on time either and I went to the hospital in my own car and without a female escort. I kept telling myself not to faint all the while." Her husband spoke to the station officials the next day but no one's got back to them with any update. They've also filed a police complaint. "This shouldn't happen to anyone else. There should've been barriers on the side. Not just for disabled people but also for kids. Anyone can fall in when it's crowded," she explains. 

Asked about the incident, spokesperson for Delhi Metro Anuj Dayal admitted that there had been shortcoming on part of the Delhi Metro staff. "The passenger had spoken to a customer facilitation assistant at Rajiv Chowk who had informed the train operator on the Vaishali-bound train. The TO, however, didn't inform station staff at Vaishali. The train operator is being questioned," said Dayal. 

"There was another case some time back," observes Anil Aneja, vice-president of All India Confederation of the Blind. He cites Section 46 of Persons with Disabilities Act, 1995, that requires all public infrastructure, including transport, to be accessible. "There's a Supreme Court judgment of March 2014, that directs states to implement Section 46 by December. It's already November," says Aneja.

Wednesday, November 12, 2014

Policy of Bus Operator to not require non disabled travelers to vacate space for wheelchair users - a discriminatory practice

Does the policy of Bus Service provider not requiring non-disabled passengers including mothers with pushchairs/ prams, to vacate space for wheelchair users be considered discrimination under UK's  Equality Act 2010 ?

After a Judge of Leeds County court ruled that the policy to not provide mandatory priority space to wheelchair users vis a vis other passengers was discriminatory under the Act, the respondent "First Bus Group" the bus company which  runs services in and around Plymouth have decided to place issue before a Three Judge Appeal Bench  seeking clarity on it as a matter of law.  The County Judge said it had been the UK's parliament’s decision to give protection to disabled wheelchair users and not to non-disabled mothers with buggies.

Here is the news from The Guardian, UK.

Appeal court weighs legal duty of transport operators to enforce wheelchair users’ priority over other passengers

Press Association

The Guardian, Tuesday 11 November 2014 15.25 GMT

A judge ruled First Group had been discriminatory by not requiring other passengers to vacate the space reserved for disabled travellers. 

A woman’s refusal to move a pushchair with a sleeping baby from a bay on a bus used by wheelchair passengers – causing a disabled man to have to leave the vehicle – is at the centre of a test-case legal battle in the court of appeal.

Three appeal judges are being asked by a bus operator to decide whether wheelchair passengers should have priority over all other passengers to use the space as a matter of law.

The judges heard that First Bus Group had a policy of “requesting but not requiring” non-disabled travellers, including those with babies and pushchairs, to vacate the space if it was needed by a wheelchair user.

But a judge at Leeds county court ruled that the policy was discriminatory and in breach of a duty under the Equality Act 2010 to make reasonable adjustments for disabled people.

The ruling was made in the case of Doug Paulley, a wheelchair user from Wetherby, West Yorkshire, who was denied access to the bus after the woman with the sleeping baby refused to move.

Paulley, 36, won £5,500 in damages against First Group, after the judge, Recorder Paul Isaacs, declared that the company should have taken measures to ensure he was not at a disadvantage when he tried to get on the bus.

The judge said it had been parliament’s decision to “give protection to disabled wheelchair users and not to non-disabled mothers with buggies”.

On Tuesday Martin Chamberlain QC, for First Group, appealed against that ruling. He said it was an example of a long-running problem on public transport that had produced conflicting court decisions and bus operators were now seeking legal clarity.

First Group had appealed because of their need to know “what they are legally required to do and how”, he said.

“It will be obvious that [First Group] are much more concerned with the wider effect of Mr Recorder Isaac’s judgment on its policies, customers and staff than on the relatively modest [damages] sum awarded in this case,” Chamberlain said. The case also affected “the expectation of disabled people to be able to access public transport”.

Chamberlain told the appeal judges, Lady Justice Arden, Lord Justice Lewison and Lord Justice Underhill: “The problem with the adjustment required by the recorder in this case is that it requires a rigid policy of priority for wheelchair users over all other passengers, irrespective of their legitimate need to use the same space.”

The requirement “unnecessarily encourages confrontation and is unenforceable”, he said, and it was not in the interests of disabled people or passengers in general.

Paulley’s defence of the Isaacs decision is being funded by the Equality and Human Rights Commission.

Source: The Guardian 

Related Media Coverage:

Monday, November 3, 2014

Indian Railways invites bids for Braille signage in long distance trains

A good news coming in from the Indian Railways wherein the Integral Coach Factory has invited bids for large scale supply of braille signage. Here is the DNA coverage today:

Railway's braille plan takes off, tenders by month-end

Tuesday, 4 November 2014 - 6:20am IST | Agency: DNA

Good news for the visually impaired people who travel by the railways everyday. The railways' plan to have braille numbering and other signs for the visually-impaired finally got off the ground with the Integral Coach Factory inviting tenders for the large-scale supply of these items. The first big tender for braille numbers to indicate the berths of long-distance trains was issued this week and will be opened at the ICF's Chennai headquarters on November 25.

Confirming the development, Alok Johri, member (mechanical) said it is the first time railways was going for these braille signage for its long-distance coaches. Currently, long distance coaches have their signage, seat numbers as well as general instructions in the normal format written on vinyl stickers or metallic plates only helpful to normal passengers.

In the latter part of last year, railways deciding to provide braille stickers in coaches to facilitate visually impaired passengers. Things moved slowly since then and plans to have one air-conditioned coach in the Delhi-Purushottam Express also seemed to have been stalled.

The railway plan for braille signs and numbers in coaches will include braille characters embedded on to the metallic base so that visually-impaired could touch it and decode the information. Railway officials said the signage has been developed by the ICF under the observation of the Research Design Standards Organisation (RDSO) with suggestions from various organisations working for the visually-impaired.

Source: DNA

Smart Floors Enhance Accessibility of Airports for Passengers with Disabilities

Dear Colleagues,

The below article by Marisa Garcia of Skift brings into light how graphic floors can help people with visual disabilities particularly those with impairments of depth perception. This can be replicated at all public spaces particularly  Transportation Buildings or interchange stations for Bus, Rail, Metros, etc. and Other Buildings such as malls, institutions, universities etc. Here goes the article covering the smart floor tiles at Edmonton International Airport.

The striking graphic floor tiles of Edmonton International Airport compliment the terminal’s distinctive modern appearance, but they're far more beautiful than that. What might appear to other passengers as a decorative contrast of graduated color tiles, was designed to help visually impaired passengers better judge the distance to their gate.

“Some Visually-Impaired passengers may have poor depth perception,” explains Heather Hamilton, Spokesperson for Edmonton International Airport. “They can’t judge the distance to their gate with a long monochrome flooring in the terminal hall. The distance varied tiles of the floor we installed, with its skinny strips graduated along the length of the terminal, let’s you focus your eye on the lower shelves and better judge the distance to the check-in counters. The two different color insets of grey and blue also make it easier to judge the distance ahead.”

Edmonton International Airport's Floor Tiles Help Visually Impaired Passengers With Way-finding/Edmonton Airport
Edmonton International Airport’s Floor Tiles Help Visually Impaired Passengers With Way-finding/Edmonton Airport (photo credit
The decision to install this unique feature is part of Edmonton International Airport’s social commitment to travelers and to the local community. “We met with members of the community to get feedback on how we could improve our Terminal for all passengers,” says Hamilton. Helping passengers with limited depth-perception find their way through the Terminal better was one of the suggestions which came out of these meetings. “We have the same pattern worked into the carpet in our office tower. In the office carpet, the texture carpet and the height of the pile serve the same purpose.”

Awareness is growing in the travel sector, including at airports and airlines, about the importance of Universal Design. This is design which considers the needs of all and makes products and environments attractive, functional and accessible. Think OXO.
Edmonton International Airport's Graphic Pattern on Floor Helps Visually Impaired Passengers with Way-Finding/Edmonton Airport
Edmonton International Airport’s Graphic Pattern on Floor Helps Visually Impaired Passengers with Way-Finding/Edmonton Airport (photo credit
Laurel Van Horn, Director of Programs and Editor for the Open Doors Organization, and the former executive director of SATH (Society for Accessible Travel and Hospitality), is an advocate of design which meets the needs of all travelers. The mission of the Open Doors Organization is to share insights into the needs of elderly and disabled travelers, targeting areas of improvement and carrying out accessibility initiatives.  As she explains, airport terminals are actively looking for ways to ensure passengers with disabilities and the elderly can better navigate our ever-expanding international terminal cities.

“Without a question, airports around the world are becoming more and more accessible,” Van Horn says. “This is true even in countries where little accessibility exists outside the airport. But are they becoming more usable or functional, especially as they grow in size? Most people who need wheelchair assistance in airports never use a wheelchair in their everyday lives but they can’t manage those huge distances.  Even those who can manage the walk may need an escort to find their gate because the way-finding and signage is so complex in these huge, multi-level terminals. This is where Universal Design can play a role.”


Friday, October 31, 2014

DGCA fails to respond to Disability Discrimination Notice from Court of CCPD

Dear Friends,

Our colleague Dr. Satendra Singh was invited to speak at the International Conference on Evidence in Global Disability and Health’ jointly organised by London School of Hygiene and Tropical Medicine and Public Health Foundation of India at Hyderabad in Feb 2014. While returning, he was shocked by the lack of empathy of the security staff at the Rajiv Gandhi International Airport.

He harassed at the Hyderabad International airport by security officials who insisted that Mr. Singh removed his orthosis for security check.  Incidentally, Dr. Satendra Singh, who teaches at the University College of Medical Sciences, Delhi University, has post-polio residual paralysis and uses a knee-foot-ankle-orthosis (KFAO) also called a caliper or brace, for support to allow independent mobility.
Dr. Satendra Singh, Disability Activist

He told the security officials that it is difficult for him to take off his orthosis during travel and again put it back. He expressed solidarity with the security requirements and requested the security officials (CISF staff) to screen him with ETD (Explosives Trace Detector Test) or do a manual frisking but they were hell bent on removal of the orthosis only.

It may pertinent to mention that the Security SOPs (standing operating procedures) by BCAS clearly state that removal of prosthesis is not necessary.  After, Dr. Singh, a medical doctor himself,  did not budge, knowing his rights very well, the security officials had no option but to organise the ETD scanning and he could take his flight back. 

On March 10, Dr. Singh had complained to Mr. Arvind Ranjan, Director General, CISF (Central Industrial Security Force), BCAS (Bureau of Civil Aviation Security), the Ministry of Civil Aviation, Directorate General of Civil Aviation (DGCA)  and the Court of Chief Commissioner for Persons with Disabilities (CCPD).

CISF considering the sensitivities of the issue, organised a workshop on 'soft skills' for handling disabled passengers on 30 March 2014 where it was invited Dr. Singh to share his views on frisking of people with disabilities. Top CISF and Bureau of Civil Aviation Security (BCAS) officials were also present at the session. Post the workshop, the BCAS has issued a revised SOP which is up on its website.

However, the DGCA & Ministry of Civil Aviation did not respond to even the notices issued by the Court of CCPD despite lapse of 30 days time which indicated the callousness shown by them on the subject of dignity during travel for persons with disabilities. 

Speaking to reduced mobility rights, Dr. Singh said, "I have submitted my rejoinder requesting Court to make sure both DGCA and BCAS amend their rustic screening rules, modify guidelines taking UN Convention on the Rights of Persons with Disabilities into consideration."

We hope with the change in guard at the centre, under the able leadership of Prime Minister Narendra Modi, things will fall into place and the lackadaisical attitude will be shunned by the Ministry and it will ensure that no such incident ever happens with any person with disability.

The matter is pending adjudication in the court of CCPD. More updates once the court passes its final order/ judgement!

Media Coverage on the issue

The Enablist (Blog)/ Times of India:   Airlines can't refuse to fly differently abled 

Monday, July 14, 2014

Insensitivity of Air India towards disabled on display

Dear Friends,

If we go by the incident reported below, then this is another display of insensitivity by the airliners towards travellers with disabilities for Air India has openly expressed that it doesn't accept passengers with any mental disability or challenge or with autism. Here is the coverage by DNA.

No air travel for the mentally challenged?

Baishali Adak, Jul 11, 2014, DHNS :

Concerning issue

In yet another case of violation of rules regarding ‘air transportation of the disabled’ and sheer insensitivity, a woman with an autistic child was recently told by Air India staff that they “do not accept passengers with any mental disability/challenge/autism.”

 Though she took up the matter with the board of directors, Air India, and they wrote back to her saying that the incident will be investigated, there was no word of assurance that her son will be allowed to fly with the airline in future.

With several such cases  having surfaced in the past, the present case again points to gaps in implementation of guidelines set in this regard by the Directorate General of Civil Aviation (DGCA) combined with lack of staff training. All of this ends up inconveniencing the differently abled who are already burdened by various problems on a daily basis.

Nikita Sarah, head, Advocacy and Communication, The Leprosy Mission Trust India, called up the Air India Customer Support on June 21 to enquire about facilities and discounts, if any, available for the differently abled. To her shock, she was told that Air India does not carry passengers with any mental disability at all. When she requested the call to be transferred to a superior, the manager reiterated the stand. The same day she e-mailed the Board of Directors, Air India, and they responded with an apology and a promise to “look into the matter and revert”. Sarah is yet to hear from them.

Not a one-off incident

Disability rights activists inform us this is not a case in isolation. A few years back, a prominent film actor from the south, Prithviraj, had to face a similar situation when his son was denied entry into the Bangalore airport. The security staff insisted that “his son was a security threat to other passengers.” In 2012, Jeeja Ghosh, director of Advocacy and Disability Studies at the Indian Institute of Cerebral Palsy, was forced to deboard a private airline at Kolkata airport when the staff made a wrongful demand for a ‘fitness certificate.’

Javed Abidi, chairperson of Disabled People’s International (DPI), says, “It is surprising if such an incident has occurred. It is not that people with physical or mental disabilities do not travel by air. I know such persons who fly by Air India all the time, but it’s an example of airlines today not investing in training their staff properly. This has specifically been stressed upon in the DGCA guidelines on travel for people with disabilities.”

“If you look at countries like US and Britain, you will rarely ever find such instances because a single such remark or insensitive conduct sparks lawsuits.”

Merry Barua, Founder Director of Action for Autism (AFA), adds, “It is really hypocritical that when drunk passengers get on board and make scenes, or when politicians throw their weight around, the staff does nothing. But when an autistic child makes noises, people get all officious and devise their own rules.”

Ministry’s take

Though Air India officials could not be reached despite several attempts, when Metrolife spoke to Poonam Natarajan, chairperson, National Trust, Ministry of Social Justice and Empowerment, she said, “It is very disheartening to hear this. 

Unfortunately, such incidents keep occurring inspite of repeated clarifications that the mentally and physically challenged have a right to fly. I will find out from the Ministry of Civil Aviation and Air India why this is recurring and how it can be put to an end.”  

Source: Deccan Herald

Friday, June 13, 2014

Low Cost Airline IndiGo to provide dedicated stairlifts for passengers with special needs

Dear Friends,

Today, IndiGo Airlines has become the first airlines in India with dedicated stairlifts for passengers with special needs. At airports around the country that do not use ramps, IndiGo will be introducing these motorised chairs that enable passengers to board and deplane in complete comfort! 

This is no doubt a welcome step as it will help many elders and those passengers with disabilities who can transfer easily on their own but this still fails to address the needs of those who are in wheelchairs and have problems in transfers. The ramped access patented by Indigo is a better option any day where everyone walks up in an inclusive way irrespective of being  a walker or the one being pushed on manual wheelchairs by the ground service providers! Hope this facility would be in addition to that and not as a replacement to the ramps.  

So congratulations to the Low Cost Airliner and to those who would benefit from this service which is of course coming at no added cost!

Tuesday, June 10, 2014

57 Traffic Lights now blind friendly after auditory devices installed

As a result of a PIL pending in the Delhi High Court, the Delhi Traffic Police informed the Delhi high court that they have installed 57 auditory devices at traffic signals in the capital for safety of visually impaired people.

In his reply, filed before a bench of Chief Justice G Rohini and Justice Rajiv Sahai Endlaw, deputy commissioner of traffic police also informed that 35 more locations have been identified for providing auditory signals.

"... Traffic police has provided 857 traffic signals and 401 traffic blinkers all over Delhi for ensuring smooth flow of traffic and safety of pedestrians and other road users. A total of 57 traffic signals have been provided with auditory devices for the safety of visually handicapped persons. In addition, 35 locations have also been identified for providing auditory signals," the reply filed through Rupinder Kumar, deputy commissioner of traffic police, said.

"Besides... on roads where there is continuous flow of traffic, 22 pelican traffic signals and 36 pedestrian traffic signals are functional which have the facility to provide adequate time in the signal cycle to pedestrians for safely crossing the roads. Additionally, 96 signals with pedestrian aspects have been installed and it is envisaged to provide pedestrian aspects on nearly all the signals," the official said.

The police's reply came after the court in March had issued notice to the Delhi government and civic agencies on a plea seeking direction to provide parking space to the physically challenged near the entrances of public buildings in line with the Master Plan Delhi 2021. The bench had also asked the traffic police, police commissioner and DDA to file responses.

The DCP also said that regular action is taken by traffic police to remove illegal parking. He added that the traffic police prosecuted 7,10,025 people in 2013 and 2,96,232 in 2014 till April 30. The official also stated that action is also being taken against second-hand car dealers, who are causing encroachment on the roads of the capital.

The official said that the department had launched a special drive on May 6 in coordination with the civic agencies for removal of encroachment "on specially identified 11 vital corridors in the NCT of Delhi, in which 567 encroachments have been removed, action has been taken against 180 vendors, 159 vehicles have been towed away, 1047 vehicles have been challaned and 145 notices for obstructive parking have been issued. The drive shall continue on a regular basis".

A PIL filed by social worker Vinod Kumar Bansal, through advocates Anupam Srivastava and Sitab Ali Chaudhary, had sought the court's direction to the Delhi government and civic agencies to install auditory signals at red lights on public roads for physically handicapped people. The plea further sought directions to make pavements wheelchair-friendly.

Train with 20 Braille friendly coaches in the 100 days agenda of Indian Railways

Dear Colleagues,

Railways will launch a new train with all its coaches equipped with Braille-embedded signages on berths, toilets, wash basins and doors as part of the 100-day agenda being finalised by the national transporter.

Flagging off train to Katra, long awaited for clearance from Railway Commissioner for Safety, too is on the agenda.

Launching of the 20-coach train with Braille signages, a first of its kind, for facilitating visually-impaired passengers, will be part of the Railway's 100-day agenda to be submitted to PMO shortly, a senior Railway Ministry official said today.

The visually-impaired-friendly coaches in both AC and Sleeper classes were made on the basis of inputs received from Research Designs and Standards Organisation, Railways' research arm, and in consultation with associations for the blind.

The long-awaited train service to Katra, the base camp of Vaishno Devi shrine in Jammu and Kashmir, will soon be a reality as the Railways is gearing up to make the 25-km long Udhampur-Katra rail line operational shortly.

"The commissioning of the Udhampur-Katra line is likely to be part of the 100-day agenda," the official involved with finalising the agenda said.

Getting down to business, Prime Minister Narendra Modi has asked all his Cabinet colleagues to set a 100-day agenda with focus on efficient governance, delivery and implementation of programmes.

Source: Business Standard

Monday, April 7, 2014

International Law fails to protect rights of Disabled Persons when travelling by air

Dear Colleagues,

The instant judgement of the Supreme Court of England, titled Stott (Appellant) v Thomas Cook Tour Operators Ltd (Respondents) [2014] UKSC 15  stresses that even though European law can protect disability rights, where it conflicts with international convention, the international convention will prevail, not the European legislation. The case highlights the need to revisit the Montreal Convention, since this convention was drafted in an era when disability advocacy wasn't firmed in the policy framework as it exist today.  The Court though accepted that there was a breach of duty on the part of respondents, however, since the international convention did not provide for the kind of relief of damages sought on the grounds of disability discrimination, the same could not be granted.

The respondents argued that the Montreal Convention (“the Convention”), an international treaty which governs the liability of air carriers in international carriage by air, precluded a damages award for injury to feelings. Under Articles 17 and 29 of the Convention, damages can only be awarded for harm to passengers in cases of death or bodily injury.

Brief of the Case:

Mr and Mrs Stott decided to take a holiday in Zante, Greece, in September 2008. Mr Stott is paralysed from the shoulders down and a permanent wheelchair user. He has double incontinence and uses a catheter. When travelling by air, he depends on his wife to manage his incontinence, help him to eat, and change his sitting position.

Mr Stott booked return flights with Thomas Cook Tour Operators Ltd (“Thomas Cook”), a tour operator and air carrier. He telephoned Thomas Cook’s helpline twice, informing them that he had paid to be seated with his wife, and was assured that this would happen. However, on arrival at check-in for the return journey, Mr and Mrs Stott were told that they would not be seated together. They protested, but were eventually told that the seat allocations could not be changed.

Mr Stott had difficulties in boarding the aircraft, and was not sufficiently assisted by Thomas Cook staff. He felt extremely embarrassed, humiliated, and angry. He was eventually helped into his seat, with his wife sitting behind him. This arrangement was problematic, since Mrs Stott could not properly assist her husband during the three hour and twenty minute flight. She had to kneel or crouch in the aisle to attend to his personal needs, obstructing the cabin crew and other passengers. The cabin crew made no attempt to ease their difficulties.

Mr Stott, assisted by the Equality and Human Rights Commission, brought a claim under the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (SI 2007/1895) (“the UK Regulations”), which implement EC disability rights regulations (“the EC Regulations”). The UK Regulations enable civil proceedings in UK courts for breaches of the EC Regulations, and state that compensation awarded may include sums for injury to feelings. The EC Regulations require Community air carriers (among other things) to make reasonable efforts to provide accompanying persons with a seat next to a disabled person. Mr Stott claimed that Thomas Cook had breached this duty, and sought a declaration and damages for injury to his feelings.

Thomas Cook argued that it had made reasonable efforts and that the Montreal Convention (“the Convention”), an international treaty which governs the liability of air carriers in international carriage by air, precluded a damages award for injury to feelings. Under Articles 17 and 29 of the Convention, damages can only be awarded for harm to passengers in cases of death or bodily injury.

The judge at trial found that Thomas Cook had breached the UK Regulations, and made a declaration to that effect. However, he held that the Convention prevented him from making any damages award to Mr Stott. The Court of Appeal agreed. Mr Stott appealed, arguing that his claim was (i) outside the substantive scope of the Convention, since the Convention did not touch the issue of equal access to air travel which are governed by the EC Regulations and (ii) outside the temporal scope of the Convention, since Thomas Cook’s failure to make all reasonable efforts began before Mr and Mrs Stott boarded the aircraft. He relied on EU cases discussing a different EU Regulation which required compensation and assistance for The passengers in the event of cancellations and delays: the European Court had held that this Regulation was not incompatible with the Convention. The Secretary of State for Transport intervened to support Mr Stott’s claim on the second (temporal) ground.

The Judgement

The Supreme Court of England unanimously dismisses the appeal. The judgment of the Court is given by Lord Toulson, with a concurring judgment by Lady Hale. Mr Stott was treated in a humiliating and disgraceful manner by Thomas Cook. However, his claim falls within the substantive and temporal scope of the Convention, and as a result damages cannot be awarded for injury to feelings. Substantively, the Convention deals comprehensively with the carrier’s liability for physical incidents involving passengers between embarkation and disembarkation. The fact that Mr Stott’s claim involves an EU law right makes no difference. Temporally, Mr Stott’s claim is for damages and distress suffered in the course of embarkation and flight, and these fall squarely within the temporal scope of the Convention. It is not enough that the operative causes began prior to boarding.

Reasons for the Judgement

The only true question in the case is whether Mr Stott’s claim falls within the scope of the Montreal Convention. There is no dispute between Mr Stott and Thomas Cook as to the interpretation of the EC Regulations or UK Regulations, or their compatibility with the Convention. The EU cases do not assist: that other Regulation concerned general standardised measures, and the European Court had recognised that any claim for individualised damages would be subject to the Convention. The case raised no question of European law [54-59].
On substantive scope: the Convention was intended to deal comprehensively with the liability of the air carrier for whatever might physically happen to passengers between embarkation or disembarkation. The fact that Mr Stott’s claim relates to disability discrimination makes no difference. The underlying difficulty is that the Montreal Convention and its predecessors long predated equality laws. It is unfair that someone suffering as Mr Stott had could not obtain any compensation, but that is the plain meaning of the Convention. It would be desirable for the states parties to the Convention to consider its amendment. It is also possible that the Civil Aviation Authority could take other enforcement actions against Thomas Cook [61-64].
On temporal scope: the operative causes of Mr Stott’s treatment undoubtedly began at check-in, prior to embarkation. However, this is not enough. Mr Stott’s claim is for damages for the humiliation and distress that Mr Stott had suffered during the course of the flight, which fall squarely within the Convention period of exclusivity. To hold otherwise would encourage deft pleading and would circumvent the purpose of the Convention [60].
In her concurring judgment, Lady Hale considers it disturbing that the Convention excludes damages claims for breaches of individuals’ fundamental rights. It is particularly unsettling that this applies not only to private air carriers such as Thomas Cook, but also to state airlines. A treaty which contravened a fundamental international law norm would be void. Torture is a fundamental norm of this kind, and race discrimination might be another. There is a respectable view that Mr Stott’s treatment would, under the European Convention on Human Rights, constitute inhuman and degrading treatment (“IDT”). However, it appears that IDT has not yet become a fundamental international law norm. Since Thomas Cook is not a state air carrier, these issues do not arise in this case. At the very least, however, the grave injustice done to those in Mr Stott’s position should be addressed by the parties to the Convention [67-70].

Related Review by Ms. Catherine Leech  

Disabled persons’ rights not protected by International Law when travelling by air

A recent case in the Supreme Court has demonstrated that in some circumstances, even though European law can protect disability rights, where it conflicts with international convention, the international convention will prevail, not the European legislation.

The claimant in this case, Mr Stott, had booked with Thomas Cook to fly to Zante and had telephoned their helpline to ask and advise that he paid to sit next to his wife so that she could assist him during the flight. He was assured that they would be seated together. However, when they arrived at check-in, they were told that it would not be possible. Upon boarding the aircraft, Mr Stott's wheelchair overturned but he didn't receive appropriate assistance. He was then seated in front of his wife, which made it difficult for her to assist him. Relying on European law [Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007] Mr Stott argued that Thomas Cook were in breach of its duty in their efforts to give his wife a seat next to him. The judge accepted that they had breached their duty, but that unfortunately the regulations, which are part of European law, were incompatible with the more powerful International treaty [Montréal Convention for the Unification of Certain Rules for International Carriage by Air 1999}. Consequently, the judge was unable to make an award of damages because the Montréal Convention permits an award of damages, only in very specific and defined circumstances, which would not include this disability discrimination and hurt to his feelings.

Hearing the case, the Supreme Court concluded that the Montréal Convention was indeed the piece of law that trumped all others in respect of an event which occurred on an aircraft, between embarkation and disembarkation, in the course of aviation transport. Once the Montréal Convention is the governing law, the court in England (and Europe) cannot look beyond that to other pieces of legislation, which are not international. To provide a remedy on the basis of current law is impossible. It would need the Convention to be amended.

The Supreme Court held that the claim for damages for failing to properly provide for the needs of the disabled passenger was not envisaged by the convention, but because it occurred in the course of aviation travel, which the convention covers. The convention being intended to deal comprehensively with the liability of the air carrier for anything that physically might happen to passengers between embarkation and disembarkation, was not open to the court to find a way round the convention for this claimant. They agreed that it seemed unfair that Mr Stott or somebody like him who suffered ill-treatment of the kind, should be denied compensation and the fact that they had declared the air carrier in breach, was a small comfort. The underlying problem, however, is that the predecessor of the Montréal Convention, which was the Warsaw Convention dating back to the 1920s, long predated equality law and therefore this type of situation was never envisaged in the original drafting. The Supreme Court said that there was a good argument to say the convention should now be amended to take into account the development of equality rights, but any amendment would have to be agreed by all of the contracting parties internationally.

The Montréal Convention requires revisiting. Because of its antiquated origins, it is out of touch with modern society. Not only excluding appropriate remedies in respect of disabled passengers, even where (as in this case) the court identifies that the carrier has treated the passenger inappropriately, but it also excludes claims in respect of the sort of psychological harm, which has long been recognised medically. It provides an exclusive remedy, that in failing to address issues which are excluded from the convention, it provides no remedy at all and denies access to justice for various classes of genuine claimants to suffer a genuine wrong. It is surely time for this piece of legislation to be given a complete overhaul. The origins of the Montréal Convention are almost 100 years old. In this time, travel has expanded and increased beyond measure and society has developed an increasing sophistication with regard to psychiatric injury and human rights in general. An international convention which excludes a remedy to genuinely affected individuals, is not worth the paper it is written on. This is definitely something we should lobby politicians to revisit.

For Mr Stott, it is scant comfort for the Supreme Court and the courts lower down, to confirm that he has been inappropriately treated. The airlines will know that they are untouchable in law, however inappropriately they may treat disabled people or people with reduced mobility. One thing that is clear in other aspects of personal injury law, whether this relates to employers liability or clinical negligence, is the increase in safety for the public and an awareness, before accidents happen, as people are aware that negligent mistakes will be actioned, making processes such as risk assessments, essential. The absence of any effective sanction, which is the effect that this judgement has had where the airlines are concerned, is a disincentive for them to treat such passengers with appropriate respect and consideration. 

Read more .......Disabled persons’ rights not protected by International Law when travelling by air

Monday, March 31, 2014

BCAS notifies SoPs for Screening of passengers with Disabilities

Government of India
Ministry of Civil Aviation
28-March-2014 19:26 IST

SoP for Screening of Passengers with Special Needs and Medical Conditions

Bureau of Civil Aviation Security has issued procedure for screening of passengers and carry on baggage vide Circular No. 23/2005. The procedure for screening of persons with special needs including differently ­abled passengers and passengers with medical condition, has been described  in  the  said  circular.  The  Standard  Operating  Procedure  (SoP)  is  laid  down in the following paragraphs, prescribing the guidelines for screening of such passengers and device, appliances and carry–ons pertaining to them.

The provisions contained in this SOP shall be applicable to the following:

(i)  All Indian airlines/ carriers engaged in scheduled and non­scheduled air transport services both domestic and international;

(ii)   All foreign airlines/ carriers engaged in scheduled air transport operating to and from Indian Territory.

(iii)   All airport operators, including private/JVs, within Indian Territory.

(iv)   Aviation Security Group (ASG) / CISF / APSU deployed at airports.

I.     Person with disability means any individual who has a physical or mental impairment that, on a permanent or temporary basis, substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment.

(a)        Physical or mental impairment means:
(1) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory including speech organs, cardio­vascular, reproductive, digestive, genito­urinary, hemic and lymphatic, skin, and endocrine; or

(2) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments; cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, autism, drug addiction, alcoholism and geriatric disabilities.

(b)        Major life activities means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.

(c)        Has a record of such impairment means has a history of, or has been classified, or misclassified, as having a mental or physical impairment that substantially limits one or more major life activities.

II.        A person with reduced mobility (PRM) means any person whose mobility when using transport  is  reduced  due  to  any  physical  disability  (sensory  or  locomotor  permanent  or temporary), intellectual disability or impairment, or any other cause of disability, or age, and whose situation needs appropriate attention and the adaptation to his or her particular needs of the service made available to all passengers.

III.       Incapacitated passengers are those with physical or mental disability or with a medical condition, who require individual attention or assistance on emplaning.

All airport operators should make special arrangements to facilitate screening of persons with special needs as above so that the process is carried out efficiently keeping the dignity and privacy of the passenger in mind while ensuring adequate level of screening. This will include provision of suitable enclosed space for private screening of passengers covered in this SoP.

The airport management/representative of air carrier shall provide wheel chairs and render necessary assistance to facilitate the movement of the persons with special needs, when required. However, they would not normally be directly taken to the aircraft, except in case of ambulance passengers.

While  thorough  checking  is  essential  and  the  directives  under  AVSEC  circular  No. 23/2005 will be followed in letter and spirit, courtesy and attention to privacy and dignity will be invariably observed.

In the case of a passenger having difficulty in walking or standing, the way his or her screening is conducted will depend on his or her level of ability/disability.

If a passenger has difficulty standing or waiting in line due to a disability or a medical condition, he/ she should duly inform the screening personnel who will assist in directing the passenger either to front of the queue or to a separate line. Passengers should be encouraged to indicate brief details of their disability at the time of booking of the ticket itself and in case of such prior information, airlines and security staff shall make advance preparation for such passengers.

Medical documentation is helpful but not essential.

Canes, crutches and other devices which can be separated from the passengers should be subjected to x ray screening.

Wherever testing is done for detection of explosives, in addition to ETD, help of dog squad may be taken as per need. However, sensitivity of passenger and religious considerations may be kept in mind.

The  procedure  laid  down  herein  is  not  exhaustive,  and  therefore,  in  the  situations/ circumstances not exclusively dealt with in this SoP, commonsense of the screener shall prevail depending upon the situation, circumstances and condition of the passenger. For example, special procedure may be devised for persons with autism, down syndrome etc. The paramount importance is to ensure aviation security and at the same time safeguarding dignity of the passengers and preserving privacy.

Screening of passengers who use wheel chair or scooters (i.e. self - driven wheel chair)

1.  When a passenger arrives at a screening point in a wheel chair / scooter, he/ she must be accompanied either by another travelling passenger or an airline representative (including GHA of the airline) before he proceeds through security. The accompanying passenger or the airline representative is responsible for the passenger throughout the whole process of screening.

2.  If a passenger arrives at a screening point in a wheelchair and he/she is not accompanied by another travelling passenger or an airline representative, the airline’s Customer Service should be contacted for assistance.

3.  At the screening point, depending upon the ability of the passenger to walk, he/she will be requested to walk through the DFMD unaided. If he/she cannot walk, it is the responsibility of the accompanying travelling passenger or the airline representative to push the passenger in the wheelchair unless it is self – driven.

4.  In accordance with Airlines’ policy, there may also be non travelling support personnel in  attendance to board the aircraft and lift the passenger into his/ her seat. This support person must be accompanied by the airline representative. 

5.  If there is a requirement for the passenger to be lifted at the screening point, the support person or the airline representative will perform the lifting for the passenger.   

6.   The support person will be escorted by an Airline representative at the time of boarding / disembarkation.

7.  If the passenger can stand but cannot walk, he/she can be screened by undergoing a pat­down while he/she stands beside the wheelchair or scooter.

8.  If a passenger cannot stand, he/she should be offered a chair for screening and subjected to a pat­down thereafter.

9.  If there is an alarm by the DFMD, HHMD or other technology, the same must be resolved. If the alarm cannot be resolved, the passenger will not be permitted beyond the checkpoint.

10.  The passenger’s wheelchair or scooter will be inspected, including the seat cushions and any pouches/ pockets.  It will be tested for traces of explosives. Removable pouches will be x­ray screened.

11.  Any carry – on bag or document with the wheelchair passenger shall be passed through the x­ray screening.

12.  If a person objects to proceeding through the DFMD on justified medical or other ground, he/ she will be allowed passage through alternative way by the frisking officer and then subjected to screening by pat down search and HHMD where permissible.

13.  If a person refuses to undergo screening, the frisking officer will inform the supervisor, who will direct what further action is to be taken. The concerned passenger will not be allowed entry past the screening point.  

14.   Only when satisfied that a person is not carrying any prohibited or dangerous article, the screening officer shall allow the person to proceed beyond the screening point. 

Screening of passenger with prosthetics

1. During screening of prosthetics ASG/APSU may use X­ray. ETD and visual check depending on the circumstances.

2.  The passenger should inform the ASG/APSU of the existence of a prosthetic, his or her ability  and  of  any  need  for  assistance  before  screening  begins.  Passengers  can  use Notification Card to communicate discreetly with security officers. However, showing this card or other medical documentation will not exempt a passenger from additional screening when necessary.

3.  Dignity and privacy of the passengers should be borne in mind during the entire process of security screening. Where the officer needs to see the prosthetic, care should be taken against  exposing  any  sensitive  areas.  ASG/APSU  will  also  use  technology  to  test  the prosthetic for traces of explosive material. If explosive material is detected, the passenger will have to undergo additional screening.

4. Passenger with prosthetics or braces/support appliances must be accompanied by an airline representative, preferable of the same gender as the passenger.

5.  The staff of airline and any other accompanying person shall be frisked and checked before allowing them access to the passenger with prosthetics at the screening point.

6.  The passenger will first pass through the DFMD and necessary security checks.

7. The passenger should then be taken to a private screening point and made to sit comfortably. He/she  will  receive  additional  screening  including  a  pat­down.  If  necessary,  screening through ETD trace will be adopted. While dealing with prosthetic device and during taking off and putting on of clothes, privacy of the passenger should be maintained.

8.   Screening of the prosthetic appliance will include x­ray screening, ETD detection and visual inspection.  During  visual  inspection,  care  should  be  taken  that  sensitive  parts  are  not exposed.

9.      The screening in the private screening area will be carried out by two officials, one to handle to  HHMD  and  pat­down  and  the  other  to  inspect  the  prosthetics,  braces  and support appliance and subject them to additional screening.

Screening of passengers who cannot remove shoes, medical device or bandages

1.      Passengers who cannot remove their shoes due to a medical condition should inform the supervisor, SHA before screening.

2.      Passenger can be screened using DFMD and/ or a whole – body pat – down.

3.      The shoes may be subjected to additional screening like ETD, etc. 

4.            Passengers can be screened without disconnecting external medical devices and submitting them for x­ray. Such devices include Insulin pumps, Hearing aids, Cochlear implants, Spinal stimulators, Bone growth stimulators and Ostomies.

5.      Under most circumstances, a passenger can conduct a self pat­down of these devices followed by ETD screening of his/ her hands.

6.      The devices should also be physically checked against any outside interference in the manufacturing.

7.      Casts, braces and support appliances will be thoroughly inspected without exposing sensitive areas as far as possible.  ETD screening will also be used to test for traces of explosive materials, where possible.

8.      In case of bandages and/ or dressing, while caution will be observed during pat­down, it needs to be ensured that the covered area is free of threat item. Metal detector, observation and self pat­down followed by ETD checks may suffice in most cases.

9.      Passengers with metal implants will be subjected to a thorough pat­down, and the metal alarm should be resolved satisfactorily. The full body pat down should include the following:

            i.   It should concentrate on upper legs and torso.
            ii.  Special attention should be given to the chest and abdomen areas of the body.
            iii.  Particular focus should be on any skin surface abnormalities or wires or tubes exiting the body that may be signs of an implanted device.

10.  In accordance with BCAS memo. no. CAS – 3 (32)/ 2009/ DIV – III B (SA Kolkata) dt 5.9.2010, all airport operators shall display a board near SHA in a prominent way stating that DFMD/ HHMD are safe for pacemaker and for pregnant ladies.

Screening of passengers with service animals:

If the passenger has a service animal, the instructions issued by AVSEC circular no. 6/2001 shall be implemented. If the service animal is permitted to be carried on board the following instructions shall be followed.

a.   The animal must be wearing a harness, vest, or other identifier that it is a service animal.
b.   The passenger must maintain control of the animal at all times.
c.    He or she should not be separated from the service animal.
d.   The screening officer should ask for permission of the passenger before touching the animal.
e.   Service animals are screened using walk through metal detector followed by a pat down.  There are three options:
        i.      The service animal goes first and the passenger follows holding the leash.
        ii.     The passenger goes first holding the leash and the service animal follows.
       iii.      The passenger and the service animal go together.

f.     Regardless of who goes through the metal detector first, the screening officer will perform a physical inspection of the animal and its belongings (collar, harness, leash, backpack, vest, etc.). The belongings will not be removed from the animal.

g.    The passenger should not make contact with service animal (other than maintain control of the leash) until the animal has been cleared.

h.    Medication for serving animals will be subjected to x – ray and other screening, if required, separately. These also should be separated from other items in the passenger carry­on.

Ambulance passengers 

Due to exigencies of their exceptional medical conditions/ illness, some passengers are directly taken through the security gates to the aircraft for boarding. In such cases, as far as possible, the airport operator/ airline should provide its own ambulance.

a.  The passenger and all occupants of the vehicle should be subjected to a pre – embarkation security check at the security gate by the ASG/ APSU staff under the supervision of an officer not below the rank of an Inspector. The ambulance should be permitted to proceed to the aircraft only after this check has been completed.

b.   In case the ambulance is privately owned or hospital provided, it must be led by follow – me vehicle of the airport operator. The ASG/ APSU staff shall check to ensure that the vehicles  do  not  carry  anything  objectionable  and  are  not  being  accompanied  by unauthorized persons or persons who have no need to be in the vehicles. Such ambulance will be escorted by ASG/APSU staff.

c.    All occupants of the vehicles, unless exempted, must be screened at the gate before allowing entry into the airport.

d.    The movement of the ambulance should be coordinated well in advance by the airline operator with CASO and airport operator.

Screening of medication and associated supplies

a.  All medications and associated supplies (i.e., syringes, sharps disposal container, pens, infusers etc.) are allowed through the checkpoint only after they have been screened.

b. Medication and related supplies are normally x – rayed.

c.  Passengers have the option of requesting a visual inspection of medications and associated supplies with due reason.

d.  Any medication that cannot be cleared visually must be submitted for x – ray screening.

e.  BCAS has issued detailed guidelines regarding carriage of liquids, aerosols and gel (LAGs) on board vide AVSEC Circular No. 18/ 2006. Medically necessary LAGs are permitted in excess of 100 ml on need basis after they have been screened. These items are subject to additional screening through visual inspection and ETD swipe, if necessary.

If a passenger has medically necessary LAGs, he or she needs to :

      i.      Limit the amount to what is reasonably necessary for the itinerary;
      ii.      Separate these items from the other LAGs;
      iii.      Declare the items; and,
      iv.      Present these items for additional inspection on reaching the security check point. 

X­ray screening of respiratory equipment

a.    Supplemental oxygen and other respiratory related equipment are permitted through the checkpoint once they have been screened. This is subject to DGCA regulations also.

b.    If a passenger can disconnect from the oxygen, the oxygen container will undergo x–ray screening.

c.    Passengers who cannot disconnect from respiratory equipment will be screened by undergoing a pat – down.

d.   Respiratory equipment that is not x – rayed will be visually and physically inspected, and will be subject to ETD screening.