Rail Replacement and School Buses Must Be Wheelchair Accessible

 Accessibility, Buses, Trains, Transport accessibility  Comments Off on Rail Replacement and School Buses Must Be Wheelchair Accessible
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

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.

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 2018, 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. (This exemption is removed on 1st January 2020.)

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.
Mar 292017

Picture of a policeman's helmet in a bus wheelchair space

I’ve got West Yorkshire Police to recognise that a bus driver who refuses a wheelchair user access to an empty wheelchair space on a bus is committing a crime and should face punishment.

Disabled people, bus companies and drivers should all be made aware that such crimes should be reported to the Police.

The Police Crime Commissioner said:

I have heard back from West Yorkshire Police now. They have confirmed that bus drivers refusing access to wheelchair users is a summary only offence which can be enforced by the police.

Any reports of access issues would be logged and an enquiry conducted on the evidence available. Prosecutions could subsequently be considered.

The police would therefore encourage anyone to contact the police if they believe they have been a victim of this crime.

They have taken steps to ensure the Force’s Contact Centre staff are informed to ensure that any calls are handled appropriately.

Contact the Police by live chat, phone, SMS text or Text Direct.

Under the same legislation, drivers are also under a criminal law obligation to:

  • accept passengers with assistance dogs
  • allow a wheelchair user on to the bus even if the wheelchair space is occupied, if passengers and/or their effects in that space can readily and reasonably vacate it to another part of the vehicle
  • work a ramp or boarding lift (including by using the manual override if an electric mechanism is broken), when a wheelchair user wishes to get on or off, e.g. when a wheelchair user presses the special blue button to show they want to get off
  • help wheelchair users get on or off
  • enable wheelchair users to access and leave the wheelchair space
  • kneel the bus if they think a disabled person would benefit from it and/or if asked to do so
  • make sure the bus is displaying the correct route number and destination.

The above duties are criminal duties on a driver, separate and added to the duties under the Equality Act. Failure to comply with the duty may result in a driver’s criminal conviction, a fine of up to £500 and endorsements on the driving license.

I would encourage disabled people and their allies to contact other Police Forces / Police and Crime Commissioners, to encourage them to take similar proactive action.

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