The Truth Behind Fat Tax Ruling

Analysis of a UK Court of Appeal ruling thought of paving the way to the introduction of a fat tax for obese air passengers reveals a far more disturbing scenario.

Judges issued the ruling after considering two cases involving wheelchair-bound passengers. The disabled passengers filed lawsuits against air carriers after they were unable to sit next to their carers on board their flight.

The Court of Appeal dismissed both cases, ruling that the Montreal Convention, a framework of international rules and regulations on air travel, takes precedence over British law.

"The ruling confirms that disabled passengers have no right to dignity once the wheels leave the runway," Daniel Barnett, a barrister at Outer Temple Chambers said.

This is not the first time a UK Court issues such decision. On February 25th 2011, The High Court of Justice dismissed the appeal in the case of Tony Hook v British Airways Plc. 

Disabled child Tony Hook filed a complaint against British Airways, alleging that on both the outward and return flights from London to Paphos (Cyprus) the airline failed to make reasonable efforts to meet his seating requirements. Annex II of 1107/2006 states that "The [airline shall make] all reasonable efforts to arrange seating to meet the needs of individuals with a disability or reduced mobility on request and subject to safety requirements and availability."

Tony Hook filed his claim pursuant to Regulation 9 of the Civil Aviation 2007/2895 ("the UK Regulations"). The Honourable Mr Justice Supperstone dismissed the appeal, explaining his ruling as follows. 

"In my judgment it is clear from the decision of the House of Lords in Sidhu there are no exceptions to the exclusivity of the Convention. The EC Regulation does not override the Convention and Regulation 9 of the UK Regulations must be read to accord with the EC Regulation. There is no breach of the principle of equivalence. Neither the EC Regulation nor Regulation 9 of the UK Regulations creates a private law cause of action sounding in damages. The Appellant may invoke the administrative enforcement regime which is operated by the Civil Aviation Authority."

Robin Allen QC and Catherine Casserley, instructed by Equality & Human Rights Commission, Manchester, filed the unsuccessful appeal for claimant Tony Hook.

Both rulings expose the need for urgent changes to EU 1107/2006. It also reveals the urgent need for the Department For Transport to provide the Civil Aviation Authority with civil enforcement powers.

The rulings show that disabled passengers are, de facto, left without protection and access to legal recourse. Regulation 9 of the UK Regulations has proven inadequate in claims filed against carriers. The CAA is unlikely to use criminal prosecution powers for "minor offenses", thus unwillingly legitimizing hideous behaviours and allowing carriers and airport managing bodies to get away with discrimination against disabled passengers and travellers with reduced mobility.

European Lawmakers must follow the example of their U.S. counterparts to improve all aspects of protection for passengers with reduced mobility and other disabilities.

Airlines are businesses, and all businesses thrive on maximizing their margins. Lawmakers have the responsibility set boundaries that protect travellers from becoming victims of airlines cutting corners to maximize profits. 

The U.S Department of Transportation shows determination in not caving in to airlines. "A few foreign carriers said that it was improper to permit non-U.S. citizens to have access to the U.S. DOT through the complaint process. In the commenters’ view, this implied improper extraterritorial jurisdiction under a law that was intended to create rights only for U.S. citizens. We do not agree," a DoT report says.

While UK Judges rule in favour of the airlines on the legal interpretation that there are no exceptions to the exclusivity of the Montreal Convention, American lawmakers show having the rights of the most vulnerable at heart by going the opposite way.

Part 382.131 (baggage liability limits of mobility aids and other assistive devices) states that: "With respect to transportation to which 14 CFR Part 254 applies, the limits to liability for loss, damage, or delay concerning wheelchairs or other assistive devices provided in Part 254 do not apply. The basis for calculating the compensation for a lost, damaged, or destroyed wheelchair or other assistive device shall be the original purchase price of the device. "

In other words, U.S. lawmakers clearly stated that, on significant matters, U.S. law supersedes the Montreal Convention. Section 382.131 applies only to domestic U.S. travel.

When put in perspective to what happens across the Atlantic, UK Court rulings, Department for Transport neglect to provide needed enforcement powers to the CAA, and relaxation of intents at EU level show how indifference towards the disabled is so deeply embedded in society it has become a common practice.