Sep 302019
 

A Rail Replacement Bus and School Bus sign

Nearly all rail replacement and school buses/vehicles must be accessible – confirmed.

Rail replacement buses

I’ve previously given my legal interpretation of the applicability of accessibility regulations to rail replacement buses; now, I have independent verification.

In response to the Office of Rail and Road (ORR)’s consultation into Improving Assisted Travel, I reiterated my views and also sent them custom legal opinion supporting my position. After this consultation, the ORR published their Accessible Travel Policy Guidance. The “guidance” (despite its name!) is a comprehensive statement of the minimum that each train operating company (TOC) is required to do access-wise to meet its license obligations. The Department for Transport and the Disabled People’s Transport Advisory Committee both told the ORR that it should be mandatory that Rail Replacement vehicles are fully accessible. Despite this, in response to the consultation the ORR only obliged TOCs to:

make reasonable endeavours to secure accessible rail replacement services and taxis

That’s no different from existing statutory guidance that states

it is recommended that passenger train operators provide accessible buses, where reasonably
practicable

That appeal didn’t work. Most rail replacement vehicles for both planned and unplanned services are inaccessible. Even if some are, TOCs nearly always don’t know which of the vehicles in use are accessible. With a couple of notable exceptions, TOCs don’t bother to find out, at the time or afterwards, and have made little effort to be in a position to provide accessible replacement vehicles in the future.

TOCs’ failure to do so is a significant issue because it makes travel substantially more difficult for many disabled people. TOCs have traditionally got around this by saying they will provide accessible taxis, but that doesn’t do what is required because:

I therefore contacted (excellent) solicitor Louise Whitfield, and together we threatened to judicially review the ORR’s decision. The ORR made several commitments in response:

  • to rerun their consultation on the Rail Replacement Vehicles issue
  • to force TOCs to provide statistics on the accessibility of their Rail Replacement services
  • and to obtain legal advice on whether Accessibility Regulations apply to Rail Replacement Buses.

The ORR said: Rail replacement buses MUST be accessible

The Office of Rail and Road has published the resulting legal advice today. It is very detailed and authoritative. It validates my previous analysis and expands considerably, providing precedents.

It says

  • with minor exceptions, all rail replacement vehicles must be accessible
  • irrespective of whether the disruption is planned or unplanned
  • it is not legally relevant that the vehicles are paid for by the TOC and not by passengers
  • Both TOCs AND Bus providers are at risk of criminal prosecution if they run inaccessible vehicles
  • previous detractors claiming that only services registered with the Traffic Commissioners are subject to the regulations are incorrect.
  • The only exceptions to these rules are:
    • Rail Replacement services that are solely long distance (15+ miles between stops) and don’t run to a schedule – which covers hardly any vehicles
    • Vehicles over 20 years old that are used for “regulated” work for a maximum of 20 days a year
    • Coaches 15+ years old, though this exception will expire at the end of the year.

So: Train Operating Companies are committing criminal offences when they run inaccessible rail replacement vehicles (with some minimal exceptions.) (Being exceptionally childish, I am inwardly thinking: “I told you so”!)

It isn’t just the TOCs and bus companies that are liable: individual managers who commission or permit inaccessible vehicles are individually liable.

What now?

The industry is in an unusual situation given that this has been the law for 20+ years, apparently unrealised by TOCs, the ORR and others. The law is routinely broken; but the DVSA, which is funded and tasked to enforce the accessibility regulations, has never taken any enforcement action against any bus company as they, too, have been operating under the illusion that the current practice is legit. TOCs have not expended any substantial effort to improve the number of accessible RRBs. Tour / private hire coaches aren’t required to be accessible, and there’s no deadline that they will ever have to be. As a result, there quite simply aren’t enough accessible vehicles to provide rail replacement services.

However, TOCs are required by their license to provide rail replacement transport during disruption. What are they going to do? They have to provide rail replacement vehicles for every disruption, but there aren’t enough such accessible vehicles, and they risk prosecution for running inaccessible ones. A difficult situation they find themselves in, but I have little sympathy. If TOCs had made any significant effort to improve the accessibility of vehicles over the last 20 years, they wouldn’t be in this situation. Similarly, if they had complied with the law, which has been around for 20 years and had a staggered introduction to ease the transition.

The ORR have sent all the TOCs the legal advice today. They have solicited comments ahead of re-running the consultation and also re-described the existing requirements on rail replacement services as “provisional”. I bet TOC transport contract managers are having somewhat of a sleepless night…

School Buses

I believe that disabled pupils should be able to travel on the same buses as everybody else. To do otherwise is segregation. It is damaging to disabled pupils, their peers and society. So school buses should be accessible.

Inaccessible school buses also have a direct impact on wheelchair users, including me. I have found it difficult to book wheelchair accessible taxis around school times because they are all in use for schools contracts to transport disabled kids. I have also found it difficult of an evening because accessible taxi drivers in (say) Harrogate only work during the day. I have also had occasions where brand new buses, bought for school transport, have been used for rail replacement buses on a weekend – and yet are inaccessible to me.

Hansard makes it pretty clear that if there is any one person on a school bus for whom money has been paid for their right to travel, then the school bus must comply with the accessibility regulations. The rail replacement bus I attempted to catch in January was in use in the week as a school bus. North Yorkshire county council contracted said bus services, and sold spare capacity to pupils who aren’t entitled to free school transport. So this brand new bus should have been accessible – but wasn’t.

I complained to North Yorkshire County Council about this on 8th February this year. They took forever to respond, then basically said that they were seeking specialist advice so couldn’t respond. I appealed. They still didn’t provide a definitive response. So come July, I started legal proceedings.

Instant pandemonium ensued. I have been variously accused of:

(As evidenced in the Executive Committee Minutes.)

Rather than work towards running accessible vehicles and thus complying with both the letter and the spirit of the law, the Council have decided to get around the accessibility regulations by stopping charging pupils for spare seats. I think this is reprehensible.

North Yorkshire Council are the architects of their problem. As they openly state in their report on the subject:

Past practice is that the Council does not set out to procure accessible vehicles for mainstream home to school transport. There is no specific obligation to do so, and
transport needs for entitled pupils requiring accessible vehicles are met through
bespoke arrangements. When services are put out to tender, operators are then free
to offer accessible or non-accessible vehicles with contracts awarded on the basis of
the lowest cost to the Council (subject to meeting minimum quality standards).

The Council have therefore been quite content to run inaccessible buses, thus segregating disabled kids, and have made no effort whatsoever to provide unsegregated accessible school transport. They are subject to the Public Sector Equality Duty under section 149 of the Equality Act 2010, which obliges them to have due regard in all their public functions for the need to:

  • eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act;
  • advance equality of opportunity between disabled people and non-disabled people; and
  • foster good relations between disabled people and non-disabled people, including the need to
    • tackle prejudice, and
    • promote understanding.

I don’t see how unquestioningly segregating disabled kids in special buses, away from their peers, could be considered to comply with this duty.

The Council decided to stop charging anybody for home-to-school transport for this year, taking the financial hit, while lobbying Government for “clarification” or “change” of the law. They will then review the situation at the end of the year, with:

options including permanently waiving charges or ceasing to providing transport for non-entitled mainstream pupils unless and until operators are able to provide accessible vehicles at an affordable cost to the Council.

Or they could do what they should have been doing all along: obliging their public transport providers to provide accessible vehicles in accordance with their legal obligations. I.e. North Yorkshire County Council could enforce the existing term in their school transport providers’ contracts:

The Supplier shall ensure that Vehicles shall comply with all relevant requirements of law relating to construction (including the Equality Act 2010 and the Public Service Vehicle Accessibility Regulations 2000), equipment and use and shall ensure that the Vehicles are properly taxed, tested, licensed and insured, and where a Vehicle does not meet any element of these requirements then this would be considered a material breach of Agreement under clause 12.2.

(my emphasis)

I make no apology for taking action to ensure the Council and its officials complies with its criminal law obligation to ensure school buses are accessible to disabled pupils. I suggest other councils take note.

The Right to Ride

All disabled people are asking for, as the saying goes, is To Boldly Go Where All Others Have Gone Before.

The legislation is there for a reason. We have the Right to Ride on school and rail replacement buses, just as much as anybody else.

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.

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