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.
- 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”.
- 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:
- don’t have information pre-published about the service and only transport between two stations OR
- 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.)
- A) Rail replacement services which DO NOT have a published schedule, and EITHER:
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.