Disability Discrimination Act - Rail Services: consultation response summary

Disability Discrimination Act: Rail Services: Rail Vehicle Accessibility Exemption Order (Parliamentary Procedures) Regulations; Rail Vehicle Accessibility (Determination of Turnover) Regulations and Setting of Penalties: Code of Practice

Consultation dates

24 July 2006 to 16 October 2006.

Scope

England, Scotland and Wales.

Issue

Following consultation in 2003, measures were included in the Disability Discrimination Act 2005 (DDA 2005) to amend the rail vehicle accessibility regulations (RVAR) regime to give effect to recommendations made by the Disability Rights Task Force on improving the accessibility of rail services to disabled people.  Further amendments were included in the DDA 2005, many of which were at the request of industry in light of experience with operating under RVAR since its introduction in 1998.    

The consultation included draft regulations designed to implement some of these measures including:

• the way in which the Secretary of State proposes to decide which Parliamentary procedure should in future be used when an order which will exempt rail vehicles from the provisions in the RVAR is to be made (the Parliamentary Procedures Regulations); and
• setting out the definition of "turnover" to be used in imposing a penalty under the proposed civil enforcement regime (the Turnover Regulations).

A draft statutory Code of Practice specifying matters which the Secretary of State must take into account when determining the amount of any penalty also formed part of the package. 

A second consultation package including draft regulations to implement the rest of the DDA 2005's provisions on rail would follow in due course.

Accessible Formats

The consultation package was produced in large print, Braille, audio and easy read (PDF, 566KB) formats.

Responses received

36 (of which 64% were from industry, 11% from disability organisations, 8% from government and other organisations and 1% from passenger groups).

Summary of responses

The draft regulations were broadly welcomed by all respondents although some reserved the right to alter their views in light of the information contained in the second package.  Responses indicated that there was some misunderstanding about the scope of the proposals and it is acknowledged that these included detailed and technical regulations resulting in a longer than average consultation paper although this was partly necessary in order to incorporate a clear, regulation by regulation, explanation of the draft regulations.  The drafting of the Parliamentary Procedures Regulations in particular was also criticised for being overly complicated.  Many respondents also chose to focus on broader issues concerning rail accessibility which were beyond the scope of the consultation package.

Parliamentary Procedure Regulations

Respondents indicated that they agreed that the Secretary of State should have discretion to decide which Parliamentary procedure to adopt when considering RVAR exemption orders.  However, there appeared to be a misapprehension in the industry over the existing procedure for laying exemption orders in Parliament (the DDA 2005 ensures that, until the Parliamentary Procedures Regulations are in place, all exemption orders must be considered under the draft affirmative resolution procedure).  Industry respondents also expressed concern that the need to refer exemptions to Parliament was disproportionate, excessively bureaucratic and unpredictable and may therefore delay projects.  There was no consensus on whether the draft regulations should be amended to include a definition of "major" or "minor" or on what the distinction might be.

Definition of Turnover

Few comments were received on the definition of turnover.  Rail franchisees noted that, since they did not own stations, the provisions relating to the sale of land did not apply to them.  They also argued that the comparison with utility companies was not valid since these organisations tended to own large infrastructure assets, giving them balance sheet assets in excess of turnover although the definition used was replicated from that defined in the Railways Act 1993.  Tram operators also stated that they were subject to a mix of financial arrangements, with heritage tramways often being included in a broader museum entrance fee making turnover difficult to disaggregate for these purposes.

Setting of Penalties Code of Practice

Few comments were received on the Code of Practice itself with industry seeking clarification about the maximum level of fine to which train operating companies would be exposed.  In  particular many argued that the proposed penalty regime could be excessive, particularly in comparison to fines levied for Health and Safety breaches.  Concerns that fines would be levied on a 'per vehicle' rather than a 'block' basis were also expressed as were potential exposure to large fines in the event of an industrial dispute taking place and staff refusing to carry out the operator's obligations under RVAR.  Some suggested that receipts from fines should be used to fund accessibility improvements and that franchise awards should take account of an operator's record on accessibility.  The need for an enforcement regime was questioned by some and it was suggested that the extension of Part 3 of the DDA 1995 to rail services should be sufficient in this respect. 

Miscellaneous

As noted above, many respondents chose to use this exercise to comment on broader issues concerning rail accessibility which were beyond the scope of this consultation.  In particular, concerns were raised about how RVAR would interact with the new European legislation concerning the accessibility of heavy rail vehicles (the Technical Specification for Interoperability for Persons with Reduced Mobility (PRM TSI)).  Information about the PRM TSI and its implications for RVAR were included in the consultation to alert consultees about future changes which might affect the proposals.  It was not possible to include specific options for implementation at this juncture since the final PRM TSI had yet to be published.

Some heritage rail operators expressed concern that the proposed 20 day allowance enabling them to operate on the main rail network would be insufficient. 

Disability organisations were keen to ensure that there was a clear and transparent mechanism for recording and investigating complaints.

Outcome

No strong objections were raised about the provisions of the draft regulations although any objections or concerns noted above would be pursued to ensure that sections of the industry were not disadvantaged by the proposals.

Next Steps

Prior to this consultation, the Government was developing a package of statutory instruments to implement its policy of improving and strengthening the RVAR regime.  The programme for the introduction of these measures, and the commencement of the relevant provisions of the DDA 2005, was put on hold pending the development of the PRM TSI and an assessment of its implications.

The PRM TSI was formally published in December 2007 and came into force on 1 July 2008.  Following consultation, it was necessary to come forward with new regulations - the Rail Vehicle Accessibility (Interoperable Rail System) Regulations 2008 [SI 2008/1746] - to facilitate its introduction.  These Regulations, which were themselves subject to the draft affirmative resolution procedure and came into force on 7 July 2008, have disapplied RVAR and Part 5 of the DDA 1995 from those rail vehicles used on the interoperable rail system to avoid simultaneous regulation by domestic and European accessibility regimes.  The RVAR exemption regime, for which the Parliamentary Procedure Regulations will be used in future, therefore no longer applies to these rail vehicles which will instead be subject to the interoperability regime.  Interoperability includes a more limited scope for granting exemptions than RVAR and none for introducing new rail vehicles into service whilst non-compliances are rectified.  RVAR will remain as the accessibility standard going forward for light rail, metro, underground and tram systems. 

The Government has used the delay since consultation as an opportunity to simplify the layout of the Parliamentary Procedures Regulations to respond to criticism expressed by respondees that they were too complicated.  The possibility of such a change was noted in the consultation paper itself to add further clarity if this was necessary.

The revised Parliamentary Procedures Regulations will be placed before Parliament for consideration during the autumn/winter 2008 legislative session.  Following the introduction of the PRM TSI, the Government now proposes to progress the RVAR programme, adjusted in consequence of the PRM TSI, and scaled down to apply to non-interoperable rail systems only.  Consultation on proposals will be undertaken in due course.

Useful Links

• For more information on the Disability Discrimination Act 2005, updates on the development of disability legislation in transport and improvements in the accessibility of transport services more generally, please see www.dft.gov.uk/access.
• For more information on general disability legislation, please see www.direct.gov.uk/fs/en.
• The Government's portal, containing links for disabled people and carers in areas such as employment, health and education as well as advice on independent living and rights can be found at www.direct.gov.uk/DisabledPeople.