Air passenger rights for disabled people

Transcription

1 Institute of Transport Studies, Monash University Social Research in Transport (SORT) Clearinghouse Social Research in Transport (SORT) Clearinghouse Air passenger rights for disabled people Ann Frye Recommended Citation Frye, A. (2010). Air passenger rights for disabled people. Conference Paper delivered at the 12th International Conference on Mobility and Transport for Elderly and Disabled Persons (TRANSED) held in Hong Kong on 2-4 June, This Conference Paper is brought to you for free and open access by Social Research in Transport (SORT) Clearinghouse. It has been accepted for inclusion in Social Research in Transport (SORT) Clearinghouse by an authorized administrator of Social Research in Transport (SORT) Clearinghouse. For more information, please contact

2 AIR PASSENGER RIGHTS FOR DISABLED PEOPLE Frye, Ann Chair, Sub-Group on Passengers with Reduced Mobility European Civil Aviation Conference and Director, Ann Frye Ltd 1. SUMMARY This paper reviews recently introduced legislation on air passenger rights for people with a disability both in the European Union (EU) and the USA; looks at the benefits and potential conflicts between the two sets of rules for air travellers with a disability as well as for airports and air carriers and considers possible further steps to promote accessibility in air travel. Key words: air travel; passenger rights; legislation 2. CONTEXT For many years, disabled air passengers and those with mobility difficulty have faced discrimination and careless or undignified treatment in some airports and at the hands of some airlines. Commonly reported problems range from being denied boarding simply because you have a disability through to finding your wheelchair broken and unusable when you reach your destination. The growing number of older people in almost all our populations and the greater availability of low cost air travel in many parts of the world, have led to a significant and increasing number of older and disabled people wanting to travel by air. These two factors combined have put pressure on governments as well as on air carriers, airports, tour operators and travel agents to provide better and more reliable services to meet the needs of this growing passenger market and to recognise that disabled air travellers have rights that must be respected.

3 3. NEW LAWS 3.1 European Union Regulation 1107/ Scope Regulation 1107/2006 deals with the rights of disabled persons and persons with reduced mobility when travelling by air. The Regulation applies to disabled people travelling by commercial air passenger services departing from, arriving at or in transit through an airport situated in the territory of any of the 27 countries which are members of the EU. Provisions dealing with refusal of carriage and assistance by airlines also apply to passengers travelling from a third country to a Member State. A number of other countries in Europe which are not members of the European Union have also adopted the requirements of the Regulation on a voluntary basis. The text of the Regulation can be found at: PDF Denied Boarding The first part of the Regulation, which came into force in July 2007, makes it illegal for airlines to discriminate against disabled passengers by refusing to carry them. The only exceptions are for very small aircraft in which it is physically impossible to provide for the needs of a disabled person (for example because the door is too narrow for a wheelchair or to lift a passenger on board) or on the basis of legally binding safety requirements. There is also a requirement, subject to advance notice, to accept on board a recognised assistance dog. Airlines can require that a disabled passenger is accompanied by someone capable of providing assistance to them. Airlines are encouraged but not required to offer a discounted fare to the accompanying person Responsibility of airports The second part of the Regulation places responsibility on the airport managing body to provide services and facilities to meet the needs of disabled passengers from the point of arrival at the airport to their seat on the aircraft and in transit through an airport and vice versa. The Regulation sets down minimum requirements for assistance. The managing body of all airports handling more than 150,000 commercial passenger movements a year must set quality standards for the service, in cooperation with airlines and bodies representing disabled people. Airports may provide the services themselves, or contract out to another body, including an airline, to provide them.

4 The Regulation does not set quality standards but does make specific reference to the guidance drawn up by the European Civil Aviation Conference (ECAC) which sets set out detailed information on best practice in areas including ground handling of disabled passengers and staff training in disability awareness and other key areas. This can be found in the latest edition (December 2009) of ECAC. Doc No. 30, Part I, Section 5 and annexes at Disabled passengers cannot be charged for services. The airport managing body recovers the costs of the service through a charge on airlines proportionate to the total number of passengers they carry to and from the airport. The kinds of assistance that must be provided to disabled passengers are set out in the Regulation. They include facilities to enable the disabled passenger to communicate their arrival at the airport and ask for assistance from designated points outside and inside the terminal building (for example a call button). Designated points of arrival will vary according to the size and layout of individual airports but should include car parks serving the airport as well as taxi ranks and train and bus terminals. Most importantly, the selection of appropriate designated points should be made in consultation with disabled people who use that airport. The airport has to provide assistance to enable a disabled passenger to move through all stages of the airport procedures including check-in, security checks, lost and found and access to duty free and restaurant outlets. Enabling the disabled passenger to use toilet facilities is also, of course, an important requirement. Passenger information must be in accessible formats. The same requirements apply in the case of connecting flights Responsibility of air carriers The airlines have obligations too. They must seat a disabled passenger where they are most comfortable on board, subject to safety requirements which apply, for example to the exit row of seats. They must provide help moving to and from the on board toilet (though not in the toilet) and they must carry up to two pieces of essential mobility equipment (such as a wheelchair) provided that there is space on board Responsibility of passengers Passengers also have obligations as well as rights and it is important that they are aware of what they need to do before they fly to make sure that they get the assistance they need.

5 Anyone who needs assistance must tell the airline or travel agent with whom they have booked what their requirements are at least 48 hours ahead of the scheduled departure of the flight. If they don t, the airports and airlines are still required to do their best. However, to be sure of getting the support that is needed, advance notice is essential Training Like all laws, it will only work if everyone understands what needs to be done and is committed to doing it well. For this reason both airlines and airports are required to provide disability awareness training to their staff as well as more specialised training for those working directly with disabled passengers and handling mobility equipment Enforcement In every country, a National Enforcement Body has been appointed to monitor quality standards and to deal with complaints about non-compliance. There are also penalties for non-compliance which are set at national level. Most countries have appointed their civil aviation authorities to this role. 3.2 US Air Carriers Access Act Part Scope The US Government has extended the provisions of its Air Carriers Access Act, which has been in effect since 1990, to apply to non-us carriers. This new Rule on Non Discrimination on the Basis of Disability in Air Travel (CFR14, Part 382) came into effect on 13 th May The text can be found at: It applies to non-us carriers flying into and out of the United States and all carriers on code share flights with a US airline (for example Cathay Pacific/American Airlines) between two points anywhere in the world. There are major financial penalties for non-compliance. On code share flights: Starting or ending in the US the requirements apply in full; Between two non-us points only the service and non-discrimination provisions apply, not the aircraft accessibility provisions; Between two non-us points, it is the US carrier, not the foreign carrier that will be held responsible for non-compliance. All non-us carriers must comply unless they are expressly prohibited from doing so by binding legal mandates in their own countries. Carriers had to apply to the US Department of Transportation for a waiver if they believed such conflicts existed. The

6 US Government does not consider that recommended practices or voluntary codes constitute a legal mandate and few waivers have been granted Responsibilities of airlines Under the US Rule, airlines may not refuse to carry people on the grounds of disability. They can only exclude a passenger on safety grounds and must provide a written explanation of the decision. They cannot require advance notice that a person with a disability is travelling. The only exceptions to this are in the case of someone wanting to carry an electric wheelchair in the hold of a small aircraft or needing to travel with respiratory equipment. In these cases they can require up to 48 hours advance notice. Airlines cannot limit the number of disabled people on a flight. Nor can they require a person with a disability to travel with another person, except in certain limited circumstances where the rule permits the airline to require a safety assistant. If a passenger with a disability and the airline disagree about the need for a safety assistant, the airline can insist on an assistant, but cannot charge for their travel. They cannot deny a disabled passenger a specific seat on the grounds of disability, or require anyone to sit in a particular seat on the grounds of disability, except to comply with safety requirements. The main exception to this is the limitation that exit row seats can only be occupied by people able to assist with an evacuation. Airlines are required to provide assistance with boarding, disembarking and making connections. Assistance within the cabin is also required. Folding wheelchairs and other mobility equipment has to be given priority for incabin storage space over other passengers items. The airline must accept battery-powered wheelchairs, including the batteries. The airline must also accept on board a service animal (currently only dogs for non-us carriers). The passenger does not have to provide the same level of proof about training from a recognised body as that required in Europe. Passengers may travel (without prior notice) with emotional support or other self trained animals Training Training is required for airline and contractor personnel who deal with the travelling public Complaints resolution Airlines must make available specially-trained complaints resolution officials to respond to complaints from passengers and must also respond to written complaints. The US Department of Transportation also has enforcement mechanisms available.

7 3.2.5 Aircraft accessibility There are also requirements dealing with accessibility of new aircraft including items such as lifting armrests and accessible toilets. These do not apply to non-us carriers. 4 Key Issues Although the European and US legislation share the goal of improving the quality and consistency of the air travel experience for people with a disability, the approach taken by the two is significantly different and there is the potential for major problems for disabled travellers and for air carriers in particular. The key issue now is how to make both sets of requirements work for the benefit of disabled people without detriment to air carriers or any of the other stakeholders. 4.1 Responsibility Crucially, European law puts responsibility for meeting the needs of disabled passengers on the airport while US law puts it on the air carrier. The logic for the decision in Europe to place primary responsibility on the airport was that, taking the social model of disability, the majority of barriers preventing free and independent mobility of disabled air travellers occur at the airport rather than on board. The increasing size and complexity of many modern airports means that distances are ever greater. However, there is also logic in the US approach because passengers have a contract with the airline not the airport. 4.2 Number limitation Under US law, the air carrier cannot put a limit on the number of passengers with a disability on board. This has been the case for internal US flights for many years without any evidence of safety or other problems. The situation in Europe is both more restrictive and less clear. Although Regulation 1107/2006 clearly states that an air carrier cannot refuse either to accept a reservation or to carry a passenger on grounds of disability or reduced mobility, there is an exception in the case of applicable safety requirements. The current prevailing rule in Europe (under EU-OPs) is that that the number of passengers with reduced mobility should not exceed the number of able-bodied persons who can assist them in the event of emergency evacuation. The European Aviation Safety Agency (EASA) is currently carrying out research to establish what risk, if any, exists in carrying larger numbers of disabled passengers. Their findings are not yet clear and it will, in any event, be a number of years before any changes are made as a result. In the meantime, there is a risk that a disabled person, booked through a US carrier on a flight to Europe or elsewhere in the world, may find that they are unable to continue on their journey.

8 4.3 Advance Notice A second key difference is on the question of advance notice. Under US law it is not permitted to require a passenger with a disability to give any advance notice of their needs. Under European Regulation 1107/2006 assistance is only guaranteed if 48 hours notice has been given by the passenger. The Regulation requires that the airport and air carrier do their best to meet people s needs without that notice but it is not guaranteed. Again there is potential here for problems, particularly for passengers from the US in transit through non US airports. This is an issue both for large busy airports at which there is a high demand for assistance and equipment such as wheelchairs and at very small airports where special arrangements may have to be made. 4.4 Accompanying person A further complication is that under European law the air carrier may require that a disabled person travels with someone able to provide the assistance they need. Under US law, the requirement can only be applied on safety grounds and the airline must provide and pay for the assistant. Again this leads to the risk of a passenger who has travelled unaccompanied from the US being faced with a requirement for an accompanying person for sectors of the journey not covered by US law, 4.5 Service animals Perhaps the most controversial of the US requirements (not yet imposed on non-us carriers but that may soon change) is a requirement to accept service animals. These may be guide dogs ( seeing eye dogs) or other assistance dogs but they may also be other animals such as monkeys, miniature horses or pigs. It is not uncommon in the USA for people to travel with an emotional support animal. The European law requires only that internationally recognised and trained assistance dogs be accepted. There is strong opposition from many in Europe and stronger still from many other parts of the world to the idea of having to accommodate other animals on flights. The concerns are cultural as well as about behaviour and hygiene. The US intends to come forward with proposals for consultation later this year on extending the current requirements to animals other than dogs. 5 What is happening in practice? 5.1 At the airport It is still too early to judge the long term impact of both the European and US requirements (as they apply beyond US boundaries). To date there is little evidence

9 of major improvements in the travel experiences of disabled people and, in some cases, levels of service seem actually to have deteriorated. In the European context and there are parallels elsewhere in the world the root of the problem often lies in the way that services to provide assistance at the airport for disabled people are being secured and operated. Many of the major airports in Europe issued tenders for assistance providers in compliance with the requirements of Regulation 1107/2006. The majority of contracts were awarded to major companies providing a range of airport services, including, for example, cleaning. These companies had no particular experience or expertise in the highly specialist area of assisting passengers with a disability. Although training is required under the Regulation, the standard and depth of the training varies widely with some specialist workers receiving no more information than a 15 minute video! As a result, many complaints have been made about inappropriate handling both of people and of their mobility equipment. A number of major airports now seem to have realised the problem and are re-tendering services which a much more stringent training requirement included. A major programme of training available for all those involved in frontline work at airports has been developed by the JAA Training Organisation in Europe. Training is tailor made for check in staff, security staff etc as well as more in depth training for dedicated assistance providers. This kind of consistent training both for new staff and, on a refresher basis, for existing staff should make a major contribution to raising standards. ECAC has also issued guidance on the essential requirements for training programmes and for trainers. See ECAC Doc 30 cited earlier in this paper. The issue of pre-booking assistance is another problem area. There are complaints from passengers at European airports who have booked assistance that has not been provided and also complaints from airports that passengers who have booked assistance are not showing up. The solution to the first of these problems must rest with better training and tighter procedures as well as being absolutely clear about the point at which the passenger wishes to have the assistance provided. It is no use saying, as one major European airport does, that assistance can only be provided after check in! The second issue about the waste of time and resource because the pre booked passenger doesn t show up is, in many cases, down to a lack of information about the size and nature of individual airports. For the majority of passengers who are not frequent flyers, information is not readily available for example, about the maximum distance that they may have to walk or wheel between check in and the departure gate. They may therefore book assistance when they don t need it at a small airport. This is particularly true of flights between major airports where distances are great

10 and small regional airports which are on a much more manageable scale. One solution here is to ensure that better information is made available at the time of booking to enable people to make informed decisions about whether they will need assistance. 5.2 On board In Europe and many other parts of the world, there are still frequent problems with passengers with a disability being refused by the captain or treated inappropriately (for example two blind people who travel together on a regular basis being denied the right to sit together on a recent flight). This is often the result of a simple lack of understanding about the very different nature of different types of impairment. The current rule that prevails in Europe, for example, makes no distinction between a passenger who may have a slight hearing loss and one who is unable to move without assistance. Clearly the issues if any about safety and evacuation are very different and ECAC has issued guidance to aircraft captains to help to put some of those differences in context. The guidance is included in ECAC Doc 30 cited earlier in this paper. 5.3 Complaints resolution The complaints process under US law is well established and clear and works initially through Complaints Resolution Officials at every airline. Where complaints are not resolved at that level, the US DOT has clear procedures for dealing with the issues and imposing penalties on airlines as well as requiring changes to policies or practices. In Europe, however, because each Member State is separately responsible for monitoring and enforcement, the process is complex and often confusing. As a result, problems are currently significantly under reported. 6 The Future As a result of both the European and US legislation, there is no doubt that the rights of passengers with a disability have become a major issue for the aviation industry. It is still early days in the implementation of both sets of rules and there are already signs that airports and others are learning from early mistakes and that improved systems and services will be put in place. Key to the success of both sets of legislation is regular and effective monitoring and enforcement of infringements of the law. The USA has many years of experience of rigorously enforcing the Air Carriers Access Act at a domestic level. In Europe the enforcement system is still at an early stage and different Member States in the

11 European Union are adopting different regimes and penalty levels to fulfil that function. One important priority will be to establish a database of complaints made under the European Regulations (one already exists for the US law) so that trends can be tracked and changes made as necessary. Later this year, the US Government will be consulting on a number of extensions to the provisions of the Air Carriers Access Act that they wish to apply to non-us carriers. Some of these perhaps in particular the issue of service animals may prove to be particularly contentious. In parallel, the European Commission has set up a study of the effectiveness of Regulation 1107/2006 which will be pinpointing key issues and gaps in the current legislation when it reports later this year. 7 Conclusions Legislation to protect and promote the rights of disabled air travellers is essential to raising standards and to enabling people to travel with confidence. There is still a long way to go both in terms of embedding and enforcing the laws that are already in place and perhaps just as importantly in harmonising them. The current differences and potential conflicts between European and US laws are not helpful to passengers who may be misled about what to expect on a flight involving transfers - or to air carriers who may be faced with having to comply with two incompatible sets of requirements. The one development that would do most to give people with disabilities the confidence to undertake journeys by air would be a consistent approach to the services and facilities they can expect wherever they are flying to and from. That doesn t necessarily mean that everything must be identical if we don t value the differences in our cultures and customs then there is no point in travel! But we currently have too many inconsistencies between rules and procedures and too little understanding, in many cases, of the fundamental need for high quality customer service. Harmonisation will never be achieved by one party imposing its own rules and customs on others there needs to be dialogue and understanding to make progress. Since aviation is a global business, it should surely be possible to reach agreement on the basic principles that should apply worldwide on a key issue such as this!