Consultation of Draft
Rail Vehicle Accessibility Exemption order (Parliamentary Procedures) Regulations
Rail Accessibility (Determination of turnover) Regulations
Setting of penalities: Code of Practice
Introduction
Citizens Advice is pleased to have the opportunity to respond to this consultation on appropriate levels of parliamentary scrutiny for xemption from the rail vehicle accessibility regulations (RVAR); the definitions for ‘turnover’ in respect of fines for non-compliance with RVAR; and the code for determining penalty levels.
Citizens Advice Bureaux (CABx) in England and Wales received over 2,700 enquiries about public transport issues in 2005/6. We are particularly concerned that the systems for ensuring access to all potential users is robust and that potential rail users as well as providers are aware of the rules.
Citizens Advice acts as the UK European Consumer Centre (ECC). Our ECC function is delivered to UK consumers through Citizens Advice Bureaux (CABx). We consider it is essential that any proposals adopted will be capable of working with the European Technical Specifications for Interoperability for Persons with Reduced Mobility (TSI) and appreciate that RVAR covers a wider range of disability than mobility alone.
General comments
Citizens Advice fully supports the Disability Discrimination Act objectives for good and reliable access for all and the changes made by the 2005 Act, such as those listed at paragraph 3.3.1 and the move to a civil penalties regime. We are pleased that the government is taking up powers to make secondary legislation to implement the changes. We also welcome the duty to consult the Disabled Persons Transport Advisory Committee, as a valuable protection against unforeseen abuse of requirements on transport providers to provide reasonable access.
Whilst we agree that some flexibility from RVAR is needed, such as that available for heritage trains, we are concerned that exemptions are properly scrutinised, so that an opportunity is not provided for opting out of meeting the needs of disabled passengers. We fear that automatic reference to the negative resolution process could have reduced necessary scrutiny and are keen that safeguards, such as that detailed in paragraph 3.3.14, remain in place.
In order for the provisions for RVAR to work well, so that disabled users can be confident, in addition to the proposals in this consultation, it will be important that:
- information is available and publicised about what it is reasonable to expect from any rail vehicle journey, in terms of disabled access;
- provision of information about exemptions to the rules for access, where these exist in relation to that rail service, at the booking stage;
- mechanisms for reporting failures to provide for disabled access are readily available;
- all rail users are encouraged to report cases of non-compliance;
- mechanisms for gaining redress where passengers are unable to access trains because of a failure to meet RVAR are linked into the enforcement process, perhaps as a part of the compliance notice;
- enforcement is properly resourced and all stages of enforcement action are undertaken quickly, whether they are in response to complaints or inspection work and also in cases where the time provided in the compliance notice has been exceeded; and
- enforcement action is publicised so that passengers are aware of the regulator’s expectations.
Responses to specific questions
Parliamentary Procedures ( paragraphs 3.3.5 to 3.3.51)
Q1 Do you think that the criteria used to decide whether a draft RVAR exemption order merits a resolution to be passed by both Houses of Parliament (the draft affirmative procedure, which will normally involve a debate on the order in both Houses) before it can become law are correct?
We agree that this lesser procedure should only be available in restricted circumstances and that there is a need to ensure this exemption orders cannot be used to abuse the scrutiny process. Draft regulation 3(3) which allows the Secretary of State to act on advice from the Disabled Persons Transport Advisory Committee even where these regulations would otherwise require use of the negative resolution process is very welcome.
We are pleased to see that, following consultation with the statutory advisors, Disabled Persons Transport Advisory Committee (DPTAC), the Department for Transport can decide to use the affirmative resolution process even in cases where the negative resolution process would normally have been used. This type of scope acts to welcome DPTAC input and we hope indicates a respect for their informed view.
We note, in paragraph 3.3.18, that many rail vehicle refurbishments are likely to require an exemption from RVAR and that there is concern that delaying this process could be detrimental to disabled people because operators may be see this as a disincentive to refurbish. This does not, in our view, take into account the competition advantages of attracting disabled passengers.
In respect of proposed regulation 2(3)c), on unique regulated rail vehicles, we welcome the addition of provisions to avoid a mainline train operator using provisions for exemption orders under the less demanding negative resolution process to avoid the RVAR provision for their entire fleet, as detailed in paragraph 3.3.28. We also welcome the safeguard against avoiding RVAR in regulation 2(3)(e(iii) at paragraph 3.3.31.
Where the exemption is for less than six months under regulation 2(3)(f), we would welcome some provision to alert potential passengers to the short term non-compliance. We are unclear whether this six month period is a maximum or could be repeated and suggest that the drafting may need to address this.
We agree with the Government’s view expressed in paragraph 3.3.45, that train operators must understand there are real consequences for missed deadlines, both in time limited exemptions and in the enforcement process for RVAR generally.
Q2 Are there any other instances where a draft RVAR exemption order could be subjected to the draft negative procedure?
No comment.
Q3 Is a differentiation between minor and major non-compliance possible and, if so, what might it be? If such a distinction can be made, should it be applied alongside the other criteria, or should it stand alone, so that an exemption for a minor non-compliance is always dealt with by the negative procedure, regardless of how it stands on other criteria?
We are not sure it would be possible to make a differentiation between minor and major non-compliance, for the very reasons given in paragraph 2.3. Also, in addition to a judgement about whether what may be a minor access issue for one group of people would be a major issue for another group, it is impossible to assess the effect on willingness of disabled people to use rail services. The point of the DDA provisions is provision of equal access. Where problems are expected or feared it seems unlikely that people whose ease of travel is affected by that problem would be prepared to take the risk.
On the point of use of the negative procedure, we would not like this to be used automatically on issues of something defined as a minor non-compliance, precisely because ‘minor’ cannot be fully defined. The success of these regulations rests on the layering of criteria to reduce the likelihood of a failure to make proper access a requirement.
Determination of Turnover (paragraphs 3.3.52 to 3.3.65)
We see the new civil enforcement regime under the DDA 2005, including the provision on the DfT as regulator, as beneficial in that it should allow for speedier and more effective sanctions where RVDA are breached. In particular, we would like the regime to link with redress for those consumers affected by the breach. This we feel may be possible by using improvement notices that stipulate direct redress provision for consumers affected by the breaches in that notice, for example the refund of ticket costs where the service should be but proves not to be accessible. This could also act to encourage disabled rail users to tell DfT about their experiences and thus contribute to the policing of the regulations.
Q4 Are there any other sources of income that should be included in the definition of "turnover" derived from railway-related activities?
We agree that it is sensible to align this enforcement penalty regime with that of other utilities. We do, however, have three concerns:
- firstly that the deduction of tax related to turnover at proposed regulation 2(a) would seem to allow potential fine avoidance. This is not in line with the Electricity and Gas (Determination of turnover for Penalties) Order 2002;
- secondly that the intention in paragraph 3.3.56 to send a formal letter to an operator informing him of a fine to be imposed at a later date, where they have been in operation for less than a year and so have no certified account, would seem to us to invite the possibility that the business might avoid a large fine by ceasing to trade or selling the business. We understand that the Postal Services (Determination of Turnover for Penalties) order 2001 and the Electricity and Gas (Determination of Turnover for Penalties) Order 2002 allow for a fine to be calculated on a proportional basis but we are not sure that the proposed regulations in this consultation make this provision. If this is the case an amendment may be needed; and
- thirdly that the regulations make the task of identifying which company is responsible for the fine, in any situation where different companies work together as a group or in association to provide rail services. This will also be important in calculation the ceiling of 10%, in terms of which of the potential areas of railway business activity listed at regulation 2(4) can be included in that calculation.
Q5 Are the criteria used to determine turnover where no separate fares are charged sufficient?
They appear to be.
Setting of Penalties: Code of Practice & Worked Examples (paragraphs 3.4.3 to 3.4.7)
Q6 Do you think the proposed criteria under each heading in the Code of Practice are sufficient?
The proposed criteria appear mostly to be sufficient. Citizens Advice welcomes the following:
- the effect of non-compliance on the ability of disabled persons to use rail vehicles is taken into account as a criteria at 2 (f) and (g) and 3 (f) and (g);
- that staff training is included at 3 (i); and
- that provisions on obstruction under 4 includes the right of inspection where there are reasonable grounds for suspecting a relevant vehicle is on the premises as well as where this is certain. This wider scope may be very valuable where an operator might see avoiding inspection as a means to avoid a fine.
Q7 Are the worked examples and levels of penalty indicated appropriate & reasonable?
We can see the logic applied to levels of penalty in these examples and are pleased to note that penalties can be applicable ‘per offence’.
In example 1A, however, it seems odd that the problem is seen as in the low levels since no penalty would be applied until after both an improvement notice and a final notice had been issued. Notices are taken into account in example 2A.
RIA
We note that the DfT will be responsible for the important function of enforcement and see the proper financing of this role as crucial to the success of the objectives of the DDA. Further, for consumers to be confident about using rail services, it is essential that both of the following are in place: :
- effective and timely information about what passengers should expect; and
- a system for easy reporting of those problems passengers encounter where enforcement is needed.
Both these will have a cost.
Social Policy contact: Susan Marks Susan Marks
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