Jan 112019
 

Today we won two cases against London Underground, over their failure to effectively promulgate information about lift closures and alternative step-free routes for disabled people.

Westminster

Video of Westminster lift closure incident

In October 2016, I attempted to get from Westminster to Kings Cross but was thwarted as both the lift at the main entrance and the alternative lift at Canon Row were out of order. Signs still directed people to the entrance on Canon Row, despite this lift having been out of order for a number of days.

Kings Cross

In May 2017, I traveled by Underground to Kings Cross station, to discover that the lift to the surface was out of order. No warning had been given at any other station, and the response station staff gave to my plea for help was inadequate.

Judgment

District Judge Troy gave judgment today, 10th January 2018. The following are extracts from my notes of his judgment. Whilst I am satisfied they are substantially accurate, they are not a verbatim record from the transcript (which I shall order.)

Westminster

In the circumstances, the defendant was in breach of its duty to make reasonable adjustments in respect to deficiencies in signage directing people requiring step-free access to Canon Row lift as opposed to the entrance via Westminster Pier. … In respect of the Westminster case, there has been a breach of the defendant’s obligations. …

The detriment was limited, but was not solely the time wasted going down to Canon Row entrance, but also to bear in mind the frustration caused from the access being blocked, and at that point being left uncertain as to what other options available to him. Although he didn’t have a specific train, this would be a legitimate source of annoyance, no different to an able bodied person sent on a wild goose chase. This would result in frustration, and doubly so for Mr Paulley as a wheelchair user. …

Service users doesn’t have to experience actual loss in order to experience detriment, it is enough that they would prefer to be treated differently.

Kings Cross

In respect of the King’s Cross incident, it is clear that this was notified on the website … Travel on the Tube is a very different scenario compared to mainline or air, where it may be a reasonable expectation for a traveller to check in advance whether services affected, especially if some general experience of difficulties, e.g. travelling on Northern Rail on a Saturday morning, or the recent impact on Gatwick airport caused by a drone. That’s all very well in those circumstances, but any one individual traveller using the Tube may undertake several tube journeys in any one day, of varying length from 1-2 stops or longer. I don’t think it’s reasonable to expect any traveller, able-bodied or not, to consult a website. What is needed is something more to alert the traveller at point of access.

The defendant contends that staff resources and communication make the use of whiteboards difficult and the information liable to be out of date, and that this produces bigger problems for travellers, especially to disabled travellers, who may need to commit greater diversions unnecessarily. The defendant contends that Electronic Service Update Boards (ESUBs) are updated regularly, but I already observed that regarding the Kings Cross incident these were not updated until after 16pm, though the original failure was at 0640. I have my doubts as to how promptly these ESUBs are updated. However, if the information on the ESUB is to be accessed, it requires travellers to sit in front of a screen whilst it scrolls through, without any knowledge that relevant information will be displayed. It may take only 9 seconds to scroll through, but it requires the traveller to locate the ESUB. It can be particularly difficult to navigate a station concourse, especially at peak times, for wheelchair users. …

It is not onerous to the defendant to post whiteboards, so as to be of particularly assistance to the disabled community, in the 12 stations with step-free access in Zone 1.

The alternative arrangements the defendant put in hand did not amount to reasonable adjustments to avoid the situation. …

This alternative option (of assistance up the escalator) should have been offered at the outset, avoiding the distress felt by the defendant in waiting on the platform in uncertainty and with the train deadline. … The defendant had adopted an intransigent attitude in initial dealing with the claimant, in making it clear that the only alternative offered was to take the tube to Caledonian Road and a bus back. The claimant specifically questioned alternatives, including the fireman’s lift or face to face assistance, but this was not explored.

My decision may have resource implications for the defendant, but if the defendant is to comply with its obligations to make reasonable adjustments, individual employees should be identified and trained to provide such assistance to wheelchair users, especially at major stations and especially those answering emergency call points. They need task cards and their training updated to offer alternative mechanisms of egress.

Regarding Kings Cross, the detriment was more serious. … I am unimpressed by the handling of the incident by the operative, which increased the claimant’s frustration. Although a solution found, there was a period in which the claimant experienced detriment and worry.

Judicial comment

I therefore make observations (not intended to modify the judgment or understanding of the law) on future expectations regarding the defendant due to resource implications.

On the methodology of notifying incidents affecting travellers, I have come to the view that the use of any one is mechanism is insufficient, and in respect of the facts all three are found to be wanting. ESUBs must be updated immediately on discovery of lift failures. As regards communication via the website, given that passengers may undertake tube journeys on a daily basis, perhaps several times a day, it is impractical for the defendant to rely on the website to comply with its obligations because it is impracticable for users to consult the website before every journey. What is required is a combination of these mechanisms. For wheelchair and pushchair users, the practical solution is to provide some further information at the point of access at the 12 stations with step-free access in Zone 1. To the extent that the defendant is concerned that whiteboards employed to this purpose aren’t easily kept updated, all that needs to happen is to say that there has been an incident notified, please check the website or ESUB before traveling further. If adopted, this procedure would alleviate problems for the traveling public, and would not in any way place an unreasonable burden on defendant’s resources.

The judge also made the point that I am clearly more interested in the point of principle than in damages.

Doug’s comment

It’s an indictment in itself that it took 2+ years in court to reach this point. The circumstances of both incidents speak for themselves. TfL personnel’s sloppy lack of adherence to those procedures and standards designed to minimise disabled people’s inconvenience is shameful and unacceptable; and I am amazed and disturbed that TfL would spend so long, and so much money, fighting to defend such behaviour.

TfL have clear procedures as to what they can and should do to warn disabled people about lift failures. Procedures that they didn’t follow at two key step-free interchanges – King’s Cross (the busiest station on the Underground) and Westminster (right next to the houses of Parliament.) If they don’t follow them there, then what chance have we that they will follow them elsewhere?

TfL refused my multiple offers to settle out of court, stating:

Previous indications were that London Underground Limited (LUL) was very unlikely to offer any money, money having been paid in the past without stopping claims (LUL of course recognises that you are entitled to pursue your legal rights, while it may take a different view as to whether they have in fact been infringed); I have no reason to suppose that this view would have changed. Further, while LUL believes that (putting it broadly) it strives to make things better for disabled users of its services, there is no sensible way LUL can guarantee that, with the best will in the world, it will never slip up in future.

I had concerns about TfL’s adherence to previous agreements:

I am always open to discussion. My issue is that in response to previous such discussions, London Underground made promises / took actions which they didn’t keep up. Take, for example, the Tube accessibility update guidance London Underground composed in 2011, following out of court discussion with me.
So whilst I am prepared to take part in potential out-of-court action, I do need to have some form of assurance that I won’t be re-inventing the wheel.

I am really sad that TfL spent so much time, money and other resources fighting this indefensible discrimination case.

I very much hope that in future they adhere properly to suitable procedures for disseminating information and taking action when lifts break, such that other disabled people don’t go through what I did.

Sep 222018
 


Download Final September 2018 report:

Interim Reports:

Data Tables:

My research examines the efficacy of the “new” law requiring taxi drivers not to discriminate against wheelchair users, commenced in April 2017. Taxi drivers face £1,000 fines for refusing to take or help wheelchair users, or if they charge wheelchair users more, but only if the local council has created a “designated list” of wheelchair accessible taxis.

The Department of Transport’s guidance states:

Section 167 of the Act (Equality Act 2010) permits, but does not require, LAs (Local Authorities) to maintain a designated list of wheelchair accessible taxis and PHVs (Private Hire Vehicles).
Whilst LAs are under no specific legal obligation to maintain a list under section 167, the Government recommends strongly that they do so. Without such a list the requirements of section 165 of the Act do not apply, and drivers may continue to refuse the carriage of wheelchair users, fail to provide them with assistance, or to charge them extra.

It recommended local authorities create their lists by October 2017. So I conducted comprehensive research demonstrating that in April 2018, less than half of taxi licensing authorities have implemented this legislation. There have been only three successful prosecutions of drivers for discriminating against wheelchair users.

Sep 052018
 

I’m finalising my submission to the Transport Select Committee’s inquiry into the effects of this year’s rail timetable disruption on passengers. I am publishing here my explanation as to why I think that it is a (little-honoured) legal requirement that most rail replacement bus services must be operated using accessible vehicles.


  • It is a criminal offence to use most non-accessible vehicles on rail replacement services. The majority of bus and coach vehicles are subject to accessibility regulations that require them to be accessible when used on rail replacement services.
  • The Public Service Vehicles Accessibility Regulations 2000 (PSVAR) specify which buses and coaches must be accessible, and what features said vehicles must have.
  • PSVAR 3(1) and (9(b)) states that the Regulations apply to Public Service Vehicles of types specified in (2) to (7) being used to provide either a local service or a scheduled service.

Scheduled Service

  • A “Scheduled service” is defined in PSVAR 2 as:

a service, using one or more public service vehicles, for the carriage of passengers at separate fares—

(a) along specified routes,

(b) at specified times, and

(c) with passengers being taken up and set down at pre-determined stopping points,

but does not include a tour service

At Separate Fares
  • “At separate fares” is defined in Section1 Subsections 5(b)&(c) of the Public Passenger Vehicles Act 1981:

a payment made for the carrying of a passenger shall be treated as a fare notwithstanding that it is made in consideration of other matters in addition to the journey and irrespective of the person by or to whom it is made;

a payment shall be treated as made for the carrying of a passenger if made in consideration of a person’s being given a right to be carried, whether for one or more journeys and whether or not the right is exercised.

  • To give an example: I paid a fare at Northern’s Leeds ticket office during the closure of the Windermere line. Said fare included the right to travel on one return journey on the rail replacement bus between Oxenholme and Windermere. The fact that the fare included other elements (the right to travel on trains between Leeds and Oxenholme) or that the fare was not paid to the bus operator is irrelevant: the definition of “at separate fares” was met.
  • The route and times of the rail replacement bus was set out in advance and published by Northern on their webpage. The timetable stated that the bus on the outward trip was to start at Oxenholme at 1305, to drop passengers at Kendal at 1315, Burneside at 1325, Staveley at 1335, and Windermere at 1345. The bus on the return was to pick up passengers at Windermere at 1605 and at Kendal at 1625 before dropping them off at Oxenholme at 1640.
  • It was clearly a “scheduled service” for the purposes of the PSVAR. But even if it wasn’t, it is also a “local service”.

Local Service

  • PSVAR(2) states that “local service” has the same meaning as in section 2 of the Transport Act 1985.
  • S2 Transport Act 1985 states:

(1) In this Act “local service” means a service, using one or more public service vehicles, for the carriage of passengers by road at separate fares other than one—

(a) which is excluded by subsection (4) below; or

(b) in relation to which (except in an emergency) one or both of the conditions mentioned in subsection (2) below are met with respect to every passenger using the service.

(2) The conditions are that—

(a) the place where he is set down is fifteen miles or more, measured in a straight line, from the place where he was taken up;

(b) some point on the route between those places is fifteen miles or more, measured in a straight line, from either of those places.

(3) Where a service consists of one or more parts with respect to which one or both of the conditions are met, and one or more parts with respect to which neither of them is met, each of those parts shall be treated as a separate service for the purposes of subsection (1) above.

(4) A service shall not be regarded for the purposes of this Act as a local service if—

(a) the conditions set out in Part III of Schedule 1 to the 1981 Act (trips organised privately by persons acting independently of vehicle operators, etc.) are met in respect of each journey made by the vehicles used in providing the service; or

(b) every vehicle used in providing the service is so used under a permit granted under section 19 of this Act.

(5) Subsections (5)(b), (c) and (6) of section 1 of the 1981 Act (meaning of “fares”) shall apply for the purposes of this section.

  • The rail replacement bus stops on the Windermere line are each less than 15 miles from each other and there’s no point on the route that’s 15 miles from any other point, so the conditions in subsection (2) are satisfied.
  • Rail replacement buses are not operated under a S19 permit (which provides exemption from organisations whose buses are run only as a non-profit side-provision rather than as their main business) so the exemption in 4(b) is not engaged.
  • Subsection (5) gives the same definition of “at separate fares” as I discussed in relation to Scheduled Services; so, it is clear the service was “at separate fares”.
  • The exemption in subsection (4)(a) refers to Schedule 1 Part 3 of the Public Passenger Vehicles Act 1981:

5 Arrangements for the bringing together of all the passengers for the purpose of making the journey must have been made otherwise than by, or by a person acting on behalf of—

(a) the holder of the PSV operator’s licence under which the vehicle is to be used, if such a licence is in force.

(b) the driver or the owner of the vehicle or any person who has made the vehicle available under any arrangement, if no such licence is in force,

and otherwise than by any person who receives any remuneration in respect of the arrangements.

6 The journey must be made without previous advertisement to the public of the arrangements therefor.

7 All passengers must, in the case of a journey to a particular destination, be carried to, or to the vicinity of, that destination, or, in the case of a tour, be carried for the greater part of the journey.

8 No differentiation of fares for the journey on the basis of distance or of time must be made.

  • For this exemption to apply, the service must satisfy all four sections 5-8.
  • Whilst rail replacement buses comply with section 5, the rail replacement buses I attempted to catch did not satisfy sections 6, 7 or 8.

Section 6: The times and stopping points of the bus were previously advertised to the public, by various means – the attached timetable published on Northern’s website, in National Rail Enquiries journey planner, by Twitter, etc.

Section 7: Passengers were dropped off and picked up at various points not in the vicinity of Windermere, but along the route.

8: Journeys including an element from (say) Oxemholme to Windermere were priced less than journeys that only included the element from Oxenholme to Kendal.

  • The requirements in Sch 1 Part 3 of the 1981 Act are not engaged. Therefore, the service is a Local Service under S2 of the Transport Act 1985, and similarly for the purposes of PSVAR.

Regulated public service vehicles

  • As the rail replacement buses were scheduled or local services, then in the circumstances set out in PSVAR 3 (2)-(7), the vehicles in use on those services must have PSVAR certificates. Said vehicles are termed “regulated public service vehicles” (which in this context does NOT mean that they have to be registered with the Traffic Commissioner.) The definition of “bus” and “coach” is as specified in PSVAR 1:

“bus” means a public service vehicle designed and constructed for the carriage of both seated and standing passengers which is of category M2 or M3 (as defined in Annex II(A) to the 1970 Directive) and has a capacity exceeding 22 passengers, in addition to the driver;

“coach” means a public service vehicle designed and constructed for the carriage of seated passengers only which is of category M2 or M3 (as defined in Annex II(A) to the 1970 Directive) and has a capacity exceeding 22 passengers, in addition to the driver;

  • “The 1970 Directive” means Council Directive 70/156/EEC of 6 February 1970 which defines Category M2 and M3 as “vehicles used for the carriage of passengers, comprising more than eight seats in addition to the driver’s seat, and having a maximum weight not exceeding (M2) / exceeding (M3) 5 metric tons.” (Which doesn’t add anything to the definition.)
  • The effect of subsections 2, 4 and 5 of PSVAR 2 is that as of 2018 all buses with more than 22 seats in use on local or scheduled services must have accessibility certificates showing compliance with PSVAR Schedule 1.
  • The effect of subsection 7 of PSVAR 2 is that as of 2018 all coaches with more than 22 seats must have an accessibility certificate showing compliance with Schedule 1 of PSVAR unless they were first used before 1st January 2005 or manufactured before 1st October 2004.
  • PSVAR 4 exempts public service vehicles that are off-road, used under a S19 permit (as not-for-profit incidental provision by bodies whose main business isn’t public transportation, which is not the case here), used for secure transport of prisoners etc., specifically designed to carry injured or sick people, used by / for a Minister or government department or in the service of a visiting force, or:

a vehicle in respect of which twenty years have elapsed since the date of its first use on a road and which is not used to provide a local service or a scheduled service for more than 20 days in any calendar year.

Schedule 1 PSVAR

  • Schedule 1 requires regulated public service vehicles to each have at least one wheelchair space, and a wheelchair accessible boarding lift or ramp. In other words, any vehicle with a certificate indicating compliance with this Schedule must be wheelchair accessible.

Summary of effect of PSVAR on Rail Replacement Buses

  • As of 2008, ALL buses and coaches with 22 or more seats in use on Rail Replacement services must be wheelchair accessible EXCEPT:
    • A) Rail replacement services which DO NOT have a published schedule, and EITHER:
      1. don’t have information pre-published about the service and only transport between two stations OR
      2. have more than 15 miles between every stop on their route and are thus not local or scheduled services.
    • B) Buses or coaches that have been in use on a road for over 20 years and aren’t currently used on local or scheduled services for more than 20 days a year; and
    • C) Coaches first used before 1st January 2005 or first constructed before 1st October 2004.

S175 Equality Act 2010

175 Offence of contravening PSV accessibility regulations

(1) A person commits an offence by—

(a) contravening a provision of PSV accessibility regulations;

(b) using on a road a regulated public service vehicle which does not conform with a provision of the regulations with which it is required to conform;

(c) causing or permitting such a regulated public service vehicle to be used on a road.

(2) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(3) If an offence under this section committed by a body corporate is committed with the consent or connivance of, or is attributable to neglect on the part of, a responsible person, the responsible person as well as the body corporate is guilty of the offence.

  • It is therefore a criminal offence to operate buses and coaches with 22 or more seats but no wheelchair spaces on rail replacement services, unless the conditions A, B or C in Paragraph 60 apply. Both the body or bodies corporate, and the individual manager(s) within said body or bodies, are liable on summary conviction to a maximum £2,500 fine for each and every breach.
%d bloggers like this: