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.

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