Response to the Rail Vehicle Accessibility (Interoperable Rail System) Regulations 2008 Consultation

John Bengough
Accessibility Technical Standards Manager
Rail Standards & Safety
Department for Transport
4/34 Great Minster House
76 Marsham Street
London SW1P 4DR

Direct Line: 020 7944 5035
Fax: 020 7944 2160
Email: john.bengough@dft.gsi.gov.uk
Website: www.dft.gov.uk/access

Our Ref: RGEN 39/23/8
13 June 2008

 

Consultation respondees

 

Dear Sir/Madam,

Consultation on future passenger rail vehicle accessibility legislation for the interoperable rail system

Following the recent consultation exercise on the future of rail vehicle accessibility legislation to which you responded, this letter summarises the representations received and the Departments conclusions on them.

The consultation was necessary in light of the imminent introduction of new European standards in this area and to fulfil the Government's existing commitments to disabled people. Thank you for taking the time to share your views on these important issues.

We received 42 responses, including 15 from train operating companies, owning groups and their representatives, 19 from other organisations with a rail industry interest (including rolling stock leasing companies, trade unions and groups representing passengers) while seven responses were received from groups of, or representing, disabled people. A summary of all the responses can be found at www.dft.gov.uk/consultations/closed/railvehicleaccessibility. Hard copies of the summary are available by contacting me at the above address.

The consultation was centred on a set of draft regulations, the three main purposes of which were to:

• disapply existing domestic rail vehicle access requirements (the Rail Vehicle Accessibility Regulations 1998 [RVAR] and Part 5 of the Disability Discrimination Act 1995 [DDA 1995]) from heavy rail vehicles that operate passengers services on the Trans-European Network (TEN) i.e. on the rail network to which the railway interoperability directives apply. This is necessary to prevent the application of two regulatory regimes for accessibility to these rail vehicles once the Technical Specification for Interoperability for Persons with Reduced Mobility ( PRM TSI) comes into force on 1 July 2008;
• ensure the operators of heavy rail vehicles that were previously subject to RVAR, but which would be removed from its scope by virtue of the above, continue to have to operate them in an accessible manner; and
• maintain the Government’s commitment to set an end date in regulations by which time all trains must be accessible. For the purposes of RVAR, the DDA 1995 (as amended by the DDA 2005) ensures that this date can be no later than 1 January 2020, and was originally intended to apply to all rail vehicles in public service. By removing heavy rail vehicles from the scope of RVAR and Part 5 of that Act in order to avoid dual regulation (above), then the deadline also falls. This would be contrary to the Government’s aims regarding the rights of disabled people, so a similar requirement to be accessible by 1 January 2020 (but within the European framework) was proposed for insertion into the legislation through which the PRM TSI is applied. An alternative option of setting the end date at 1 January 2017 was also discussed in the consultation paper.

The consultation paper asked several questions about our proposals and sought your views on a number of ancillary matters that will help shape our policies going forward but which did not relate directly to the draft regulations.

Some questions received support from the full range of respondents who expressed a preference, while others were subject to a variety of views. Our responses to these are summarised in Annex Aattached. Clarification on certain points has also been included, as has the Department’s responses to other comments made during the consultation.

Having considered all the comments, Tom Harris, the Minister responsible for Railways, has decided to seek Parliamentary approval of the draft regulations, (incorporating a few drafting improvements to aid clarity). They were laid in draft in Parliament on 21 May. The regulations will be considered in Committee in the House of Lords on 17 June and in the House of Commons on 30 June. This unfortunately means that they can’t be in force on 1 July 2008 when the PRM TSI itself comes into force. However, if approved, they will come into force shortly thereafter.

We will continue our work with the rail industry and other stakeholders to facilitate a smooth and workable transition from the RVAR regime to the PRM TSI regime for vehicle accessibility. We also intend to work with light rail stakeholders to further develop all our proposals for the RVAR regime (within its future reduced scope) and expect to consult publicly on policy proposals later this year.

Thank you again for responding to the consultation - please do not hesitate to contact me if you have any further queries.

Yours sincerely,

John Bengough
Accessibility Technical Standards Manager

Annex A

Summary of representations received and the Departments conclusions on them

Question 1: Do you agree that new vehicles of an existing design ordered before 1 January 2010 should continue to comply with the technical standards to which they were designed (RVAR) rather than the PRM TSI?

The PRM TSI will apply from 1 July 2008 to:

• orders for new vehicles; or
• renewal/upgrade work to existing vehicles

provided that the works contract has not been signed, or is not in the final phase of tendering, by 1 July 2008. Where contracts have been - or are about to be - signed by that date, then the accessibility standard will be RVAR as a national notified technical rule (NNTR) under the Interoperability regime.

However, the PRM TSI allows for a transitional period, until 1 January 2010, where Members States may decide not to apply it for:

• the exercise of options for additional vehicles in those contracts signed (or in final phase of tendering) before 1 July 2008; and
• contracts for purchasing new rolling stock of an existing design type signed during this transitional period.

For these vehicles, if the PRM TSI is not applied, RVAR would apply instead as an notified national technical rule (“NNTR”). The consultation paper indicated that, in the absence of a clear wish by the Contracting Entity to apply the PRM TSI, the Department was minded to usually exercise this option since requiring train manufacturers to redesign their existing (RVAR-compliant) products to the standards in the PRM TSI could take some time and may add additional costs. This was felt to be undesirable, particularly in light of the announcement of an additional 1,300 new rail vehicles to boost capacity on the national rail network. Many of these vehicles will be added as additional carriages to trains of existing (RVAR-complaint) designs which might also create compatibility issues were they built to be PRM TSI compliant.

Of those who expressed a preference, all respondents agreed that it was sensible to adopt the transitional period – therefore, this will be the Department’s policy going forward. However, this will not prevent manufacturers from moving towards compliance with the PRM TSI for their existing products during this period and will allow extra time for new, PRM TSI-compliant, products to be developed.

Question 2: Do you agree that Option C provides the most clarity whilst safeguarding current levels of accessibility?

Question 5: Do you agree that there should be an obligation to remain compliant once heavy rail vehicles are removed from the scope of RVAR?

These two questions were linked and concern the way RVAR should be dis-applied from those heavy rail vehicles which are currently subject to it whilst also requiring them to be maintained and operated to the RVAR technical and operational standards until such time as they trigger the PRM TSI standards by undergoing upgrade or renewal.

The Department proposed amending the scope of RVAR and Part 5 of the DDA 1995 so that they did not apply to heavy rail. This would meet its aim of avoiding dual regulation by similar, but non-identical domestic and European access regimes. This position received widespread support, although one respondent did query why the technical standards within the PRM TSI couldn't simply be added as a schedule to RVAR. We had considered this option during development of the proposals as potentially a simple way of introducing the PRM TSI. However it had to be discounted since the result would have been more complex as applicable vehicles would be subject for accessibility to the requirements of both the Interoperability and RVAR regimes (e.g. requiring both derogations and exemptions for any non-compliance, etc). This was the situation we were seeking to avoid.

However, removing these vehicles from the scope of RVAR and Part 5 of the DDA 1995 would leave a large proportion of the fleet unregulated until such time as the PRM TSI requirements applied (i.e. when they underwent upgrade or renewal). This could be several years. So we proposed to "deem" those vehicles currently subject to RVAR as having been authorised under Interoperability with RVAR as a notified national technical rule. Being authorised brings with it a requirement to remain compliant with the accessibility standards to which that vehicle was built ie. the RVAR, which would be enforced by the Office of Rail Regulation. The majority of respondents supported the "deeming" proposal.

The regulations contained provisions to ensure that although relevant vehicles would be deemed to have been assessed against RVAR for authorisation, this would not trigger the requirements in the Interoperability Regulations for owners to maintain a “technical file” or to comply with the national vehicle register obligations.

Some respondents thought that deeming was unnecessarily complicated and suggested that continued compliance with RVAR could be enforced via franchise agreements and/or existing safety obligations in the Railways and Other Guided Transport Systems (Safety) Regulations 2006 (ROGS).

With regard to franchising agreements as an alternative method of enforcement, we believe that they are too rail service specific within the circumstances of each franchise, have unique timescales and are too contractual to be a suitable method for setting a consistent and effective regulatory framework, unlike regulations.

We have also looked at the suggested use of ROGS as an alternative mechanism for enforcement but do not believe that the wording in those regulations is sufficiently explicit to be relied on as viable enforcement option. Specifically ROGS does not contain an express requirement for rail vehicles to be maintained to the standards to which they were built. It only touches on this area indirectly by requiring operators to maintain a “safety management system” which comprises management procedures and systems to ensure attention is given to the achievement of safety and compliance with relevant standards (in particular regulation 5(1)(a)(ii) and (c) and Schedule 1 paragraph 2(c)(ii)). In any event, without the deemed authorisation provision, because heavy rail would be removed from the scope of RVAR, it could no longer be a “relevant” standard to which ROGS might apply.

Question 3: Do you agree that the applicable standards in the PRM TSI should apply, within the planned scope of refurbishment works, regardless of their scale?

This question did not relate directly to any of the provisions within the draft regulations but was rather a policy issue which has previously been dealt with through guidance. It was therefore included to ascertain respondent's views on the proposed approach to application of the PRM TSI to refurbishments.

Heavy rail vehicles undergoing refurbishment of any scale are already subject to the accessibility standards within RVAR, either directly (if they are already subject to RVAR i.e. were introduced after 31 December 1998) or indirectly, via the obligation in operating licences to meet the requirements of the (former SRA) Train and Station Services for Disabled Passengers - A Code of Practice. The Code of Practice requires operators to meet the standards in RVAR where reasonably practicable but only within the original scope of works (i.e. there is no "scope-creep" where additional access work would be required beyond that planned originally).

Following consultation, powers were included within the DDA 2005 to directly regulate all refurbishments via RVAR - this had been a long-standing Government commitment. However with the introduction of the PRM TSI consideration of how an equivalent commitment could be delivered under the Interoperability regime became necessary. Generally, TSIs are only applied to "major" works to existing vehicles (referred to as upgrades or renewals), with less significant works being undertaken to the requirements of domestic Railway Group Standards or other NNTRs if appropriate. For accessibility, industry representatives had previously indicated that this would cause undue complexity and confusion and expressed a strong preference for the introduction of a single regulatory regime for heavy rail vehicle accessibility.

During consultation on policy proposals for inclusion in the DDA 2005, industry also gave strong support to the introduction of a formal compliance certification regime for accessibility. Our recent proposals for treating all works affecting accessibility for vehicles on the TEN as triggering the interoperability regulations would have delivered this through the use of Notified Bodies to give legal certainty of compliance at the point of completion of the works. However, industry responses to this suggested that the situation had moved on and this proposal was now considered to be excessive. Further discussions with industry representatives have since revealed that they are less concerned about certification of all works than had previously been indicated. This flexibility may allow us to pursue a different solution that sees the standards within the PRM TSI being applied during refurbishments (where reasonably practicable) but without triggering the other requirements of the Interoperability regime such as the authorisation procedure. We intend to consult further with key stakeholders as these proposals develop.

One respondent also suggested that an annual competition be established, with vehicle operators/owners bidding for funds for improvements to certain fleets, along the lines of the Department's existing "Small Schemes" fund within the Access for All programme through which the Department provides matched funding for accessibility improvements at stations. We will examine this proposal but concerns that have already arisen include potential changes to leasing charges as a result of any additional investment, ensuring that winning bids do not cause work to be undertaken outside of normal maintenance downtime, and the reality that many fleets will need to be made accessible anyway, in order to operate past 31 December 2019 (provided the draft regulations upon which we consulted are approved by Parliament - see below).

Another respondent asked for clarification on the status of variations made after 31 June 2008 to refurbishment contracts signed on or before that date. These variations should be subject to RVAR, as the PRM TSI does not apply to contracts signed before 1 July 2008 (although we would encourage the industry to consider making all refurbishments subject to the standards in the PRM TSI now).

Question 4: Do you agree that a single enforcement regime is the best way forward if this proves legally possible?

Again, this question does not related directly to any of the provisions within the draft regulations but was rather a policy issue about how the enforcement of RVAR might be treated in future.

This question sought views on whether the Department should continue liaising with the ORR to establish whether that organisation might be prepared to enforce RVAR in future using the regime established under the Health & Safety at Work etc. Act 1974 (HSWA), as it does for the enforcement of interoperability. ORR is already responsible for enforcing TSIs using HSWA, and also uses HSWA for enforcing safety compliance on light rail systems. It appeared to us that it would not be sensible to create a new, separate enforcement regime or body (provision for which had been made in DDA 2005) solely for accessibility on light rail, trams, metro and underground systems. Respondents uniformly supported enforcement by ORR/HMRI but some replies from the light rail and heritage sectors expressed a desire to proceed with the DDA 2005 civil enforcement regime. We intend to discuss this issue further in order to understand the concerns expressed as we develop the RVAR "light rail" package this year.

Question 6: Do you agree that an end date of 1 January 2020 represents the best balance between the legitimate aspirations of persons with reduced mobility and the operating realities of the industry?

The Government has been publicly committed since 2001 to an end date by which time all rail vehicles in public service must be accessible. Indeed, it consulted on proposals to set a deadline in 2003 which were subsequently included in the DDA 2005. Parliament showed the strength of its support for the setting of an end date by not only mandating that the end date should be no later than 1 January 2020 (which had been announced as the Government's preferred date) but also by placing a requirement, within the Act itself, on the Secretary of State to set such a deadline in regulations.

The forthcoming replacement of RVAR by the PRM TSI does not affect the Government's commitment to make all rail vehicles accessible by an end date - nor do we believe it would affect Parliament's strength of feeling on this matter. The consultation paper did not, therefore, ask if the concept of an end date should be retained but whether it should be set at 1 January 2020 or an earlier date of 1 January 2017. We indicated that the Government's preference remained with 2020, as analysis suggests that the adoption of 2017 would be considerably more expensive and could have a significant impact on operating capacity, with almost double the number of vehicles needing attention but with three less years to complete the necessary refurbishment works.

The draft regulations therefore included provisions to enable the end date to be set via the Interoperability regime through amendments to the Railways (Interoperability) Regulations 2006. In recital 9 of the EU Commission Decision of 21 December 2007, which introduced the PRM TSI, the Commission recognise that its introduction does not preclude Member States from introducing additional measures for improving access, as long as they do not impede interoperability or place undue cost on railway undertakings.

The proposed end date would indeed be an additional measure to improve access. However, it is not considered it will impede interoperability because it will encourage the European accessibility standards to be implemented. Furthermore it is not considered it will place undue cost on railway undertakings for the reasons summarised in the impact assessment set out in Section 4 of the consultation document, namely that refurbishment costs would be reflected in increased vehicle leasing charges. When bidding for franchises, potential operators will take account of these leasing charges in their bid which will then inform the amount of subsidy required from, or premium paid to, the Government. For the minority of cases where franchise timings are misaligned with 2020, or where opportunities arise during existing franchises for rectification work to take place sooner during planned vehicle maintenance cycles or fleet cascades, other Government funding mechanisms are available. Similarly, as now, open access operators will fund their own improvement works on a commercial basis.

Of those industry respondents that commented, most (although not all) argued against the concept of an end date, as they have in the past. They also questioned its legality under European law and argued instead for a rolling programme of access improvements to be delivered entirely through future franchise specifications. Whilst the consultation paper explained that most access improvements for 2020 will in practice be provided for through the franchising process, the expiry dates of some existing franchises mean that franchising would not deliver an accessible national train fleet until almost a decade after 2020, which would not be acceptable.

Some industry sources were also concerned that national fleet capacity would be reduced if older vehicles introduced into service prior to RVAR were withdrawn shortly before 2020. Conversely, some other industry respondents were concerned that inadequate planning would result in insufficient work taking place in advance, with the result that the deadline would be meaningless as the Government would be forced to permit fleets of non-compliant rail vehicles to operate past the end date in order to prevent a reduction in operating capacity. In reality, the Department has already begun work with owners of rail vehicles to identify those non-compliances with access standards that must be rectified in time for 2020 (i.e. targeted compliance). Such information will be used to specify work in future franchises, or to enable operators/owners to approach the Department for support for compliance work during planned maintenance schedules. The Disabled Persons Transport Advisory Committee have been involved with the advice provided so far, and support the concept of targeting effort at non-compliances that have a material effect on the ability of disabled people to travel by train (such as fitment of a passenger information system), rather than pursuing correction of items that are only marginally non-compliant and have little or no impact on the ability of disabled people to travel but which can, in many cases, cost a disproportionate amount to rectify.

We intend to work with rolling stock companies to ensure that, where "decisions" are taken that permit rail vehicles with minor non-compliances to remain in service past the end date if they have no practical impact on disabled people or other persons with reduced mobility, there is certainty that these will not be changed or challenged in the future. We are confident that, through continued partnership working with the Department and disabled people, the rail industry can deliver the end date. We recognise, however, that advice on targeted compliance needs to be provided as soon as possible to enable the rail industry to plan ahead effectively.

Some industry respondents thought that the end date could not be applicable to foreign operators supplying international services into the UK and expressed concern that UK operators would therefore be put at a disadvantage by this. Other industry respondees suggested the contrary view, i.e. that the end date could be unlawful as it would prevent foreign operators from providing such services. We do not believe that either view is correct.

Had the PRM TSI not been introduced any such foreign operator wishing to operate in the UK would have been required to comply with the applicable national rules on accessibility i.e. RVAR for trains introduced into service after 31 December 1998. This would include German ICE3 trains, which were first introduced in 1999. Now such trains, if RVAR compliant, will be able to operate beyond 2020. Otherwise they would have to comply with the PRM TSI by then, to the extent they may not already have triggered PRM TSI by refurbishment. In other words the same rules will apply to foreign operators as apply to UK operators.

Finally, some respondents questioned why we were setting a deadline for rail vehicles to be accessible when there are no plans to set a similar end date for stations. The answer lies in their relative lifespans. With RVAR having been introduced in 1998, by 2020 some 75 -80 per cent of the national rail fleet will have been built to accessible standards (this figure already stands at 42 per cent). It will take many decades before we can say the same for stations, some of which would have to be completely re-built in order to provide full accessibility. Additionally, there are well established systems in place for operators to provide alternative, accessible, transportation for passengers who cannot use their local station (usually because it is not step-free). There is no such system in place for alternative transport when the rail vehicles themselves do not meet modern access requirements, which in any case would be difficult to establish because of the redeployment of fleets around the country to meet operating needs.

Question 7: Do you agree that this impact assessment presents a realistic representation of the costs and benefits of the Regulations?

Parliament accepted the £169.7 million estimated cost of making the national rail fleet accessible when it set 1 January 2020 as the latest possible time for the end date. This figure had been calculated during a full economic analysis undertaken in 2003, on the basis of full compliance with accessibility requirements. Significant improvements have taken place to individual fleets since then, the cost of which can now be removed from the overall figure.

Whilst the consultation paper recognised that no new calculation was carried out, it also indicated that the total estimated cost was likely to have fallen both for the reason given above but also for other reasons (listed on pages 38 and 39 of the consultation document), including the Department's policy of focussing effort at those non-compliances that materially affect the ability of disabled people to travel by train. The standards on which the PRM TSI is based are broadly commensurate with those set out in RVAR, and so we believe its introduction for heavy rail vehicles will not impose any significant new costs over and above those which would have been required under RVAR. We acknowledge, however, that per unit costs are likely to have risen in the meantime.

We will be looking to see whether it is possible to monetarise the benefits of improved rail vehicle accessibility, both in terms of increased travel by persons with reduced mobility (often with family, friends or companions) and the social inclusion benefits of enabling this group to access jobs, health, leisure and education services independently. These include enabling older people to remain economically active for longer - a key challenge given the UK's aging population.

Other issues

Some respondents queried the scope of the PRM TSI's access requirements, or the technical details themselves. Unfortunately, as noted in the consultation paper, this was outside its scope since the PRM TSI standards and technical details have already been set by the European Union. We do not believe it would be lawful, under European Competition law, to set down in regulations rail vehicle access standards that are more onerous than those in the PRM TSI. However, we expect to publish guidance that will include advice on best practice that goes beyond the minimum requirements in the PRM TSI - and will seek contributions from stakeholders when drafting this.

Changes to the draft regulations

Some drafting improvements have been made to the draft regulations to aid clarity. In particular the wording of proposed new regulation 4B (imposing a 2020 end date) (for insertion into the interoperability regulations) has been improved to clarify that it does indeed impose a duty on operators wishing to operate passenger services on the TEN after 2020 to refurbish existing vehicles in order to make them compliant with accessibility standards by that time where they do not already meet those standards.

Also it was originally proposed to delete regulation 12(2) (a) of the interoperability regulations (duty to operate and maintain vehicles in accordance the essential requirements) for the reasons described in paragraphs 21 to 24 of Annex B to the consultation document. On review we have adjusted the draft to retain the existing regulation 12(2)(a) without amendment but to provide that it will not apply to vehicles by virtue of their being deemed to be authorised by operation of the proposed new regulation 4A (2)(a). This is because we believe that whilst the reasoning given in paragraph 23 of Annex B holds good, that set out in paragraph 24 is less clear cut, and to extend the amendment to apply to all authorised vehicles, and not just vehicles “deemed” to be authorised, is not needed as a result of the PRM TSI.