Response to Disabled People's Access to Transport: A year's worth of improvement

The Government's response to the Transport Committee's Report on Disabled People's Access to Transport: A year's worth of improvements?

Introduction

1. This memorandum provides the Government's response to the Third Report of the Transport Committee (HC 93). The Committee's report was based on evidence taken on 1 December 2004 from Charlotte Atkins MP, Parliamentary Under Secretary of State for Transport, the Disabled Persons Transport Advisory Committee, the Disability Rights Commission, Mencap, Arriva plc, the Association of Train Operating Companies and Merseytravel. The report follows a previous inquiry held by the Committee on 19 November 2003.

2. We welcome the Committee's further report and their acknowledgement that disabled people's access to transport is generally improving. We expect that the measures in the Disability Discrimination Act 2005, which received Royal Assent on 7 April 2005, will have a significant impact on the day-to-day mobility of disabled people. We will be seeking to introduce the Act's transport provisions as soon as practicable.

3. The following responds to the conclusions and recommendations in the Committee's report, which are quoted in bold type.

Response to Recommendations

4. Regulations require audio-visual information systems on accessible trains, but not on accessible buses. This makes it more difficult for blind and partially sighted people in particular to use buses and to combine road and rail journeys. The anomaly seems arbitrary, rather than reasoned. The Government should reconsider whether audiovisual information should be mandatory in buses and coaches. Such systems appear to operate perfectly well in other countries, and some buses in the UK already have some automatic audio announcements. ( Paragraph 12 )

When the Public Service Vehicles Accessibility Regulations 2000 (PSVAR) were introduced it was acknowledged that the technological and operational issues surrounding audio-visual systems for buses and coaches were not as well developed as those for rail vehicles. Consequently, PSVAR did not include a requirement for such systems but the Department for Transport agreed to commission research to evaluate their effectiveness. That research reported in 2003.

The Department for Transport has since then opened discussions on the findings with key stakeholders and is currently working with the Disabled Persons Transport Advisory Committee to examine further the issues raised including reliability, acceptability, cost and the impact on the mobility of visually-impaired people. That work is due to be completed this autumn and will inform decisions about the regulations.

5. We cannot assess with any certainty whether the bus industry will meet the statutory deadline of 2017 to phase out buses which do not comply with the accessibility regulations. The Government, DPTAC and the bus industry should monitor progress towards this deadline by using robust and transparent national and regional statistics. We suggest they publish regular joint progress reports which highlight regional variations in the introduction of buses that meet the accessibility regulations. The benefits of accessible buses should begin to be felt country-wide before 2017, not just in some urban areas. If it appears that the 2017 deadline will not be met, or that certain areas of the country are being neglected, the Government, local policy makers and the bus industry should take corrective action. ( Paragraph 16 )

We have set clear "end dates" for all buses and coaches with a carrying capacity of more than 22 passengers used on local or scheduled services to comply with the Public Service Vehicles Accessibility Regulations 2000 (PSVAR). Those "end dates" are supported by an enforcement regime. All new buses and coaches covered by the PSVAR are required to have a certificate of compliance before entering into service.

The Department for Transport has an agreement with the Confederation of Passenger Transport to ensure that 50 per cent of the bus fleet will be accessible by 2010. This agreement is mirrored in the Department's Public Service Agreement (PSA) target to:

"Secure improvements to the accessibility, punctuality and reliability of local public transport (bus and light rail) with an increase in use of more than 12 per cent by 2010 compared with 2000 levels."

Progress towards PSA targets are published in Departmental Annual Reports and the latest outturn indicates that 39 per cent of buses in Great Britain are already accessible.

The Department for Transport also records a regional breakdown of services relating to where the vehicle was first registered and publishes other statistical publications, including 'Bus Quality Indicators: England' which contains information relating to the age of the bus and coach fleet.

The introduction of new vehicles is a matter for individual operators and we recognise that urban routes are likely to enjoy the benefits of accessibility improvements in the first instance as they are more commercially viable. Rural routes are, however, more likely to be tendered and local authorities have the power to specify accessible vehicles as a condition of the tender. It is noted that the Disability Discrimination Act 2005 is likely to have an impact in this area. Once implemented, local authorities will need to have regard to the needs of disabled people in exercising their functions, including securing tendered bus services. The Government has already consulted on draft regulations and, subject to the publication of the Disability Rights Commission's code of practice, expect to introduce the new duties in December 2006.

We will, of course, continue to encourage operators to introduce new, PSVAR compliant buses across their fleets in advance of the 2017 deadline. We do not, however, consider that a regular progress report on this single aspect of mobility policy will add value.

6. We welcome the provisions of the Disability Discrimination Bill which are intended to end the exemption of transport services from Part III of the DDA. The delay between the Joint Committee's Report and the Bill's introduction appears excessive, but we assume it will not jeopardize the Bill's passage this Session or the implementation timetable. After the Bill was introduced, the Government set out in a consultation paper the intended timetable for the relevant regulations. We assume this takes into account the Government's best assessment of the likely timetable for progress of the Bill, and we therefore expect the Government to ensure regulations enter into force by December 2006, as promised. If delays to the Bill or regulations occur, the Government must not offset them by delaying the publication of the Disability Rights Commission's code of practice. Doing so will simply increase pressure on transport operators. We shall continue to monitor the Government's progress. ( Paragraph 21 )

The Disability Discrimination Act 2005 received Royal Assent on 7 April 2005 and we remain committed to introducing the new provisions in section 21ZA of the Disability Discrimination Act 1995 as soon as practicable. Our response to the Joint Scrutiny Committee on the draft Disability Discrimination Bill included an indicative timescale for achieving that aim. We consulted during the passage of the Bill on draft regulations to apply new duties to the operators of public transport - trains (including light rail, underground and trams), buses, coaches, taxis and private hire vehicles - vehicle hire, breakdown and leisure and tourism transport services. We believe this will have the biggest effect on the day-to-day mobility of disabled people and it remains our intention to introduce the new duties for these sectors of the industry in December 2006.

The timing of the publication of the Disability Right's Commission's code of practice is a matter for the Commission. A draft of the code, which has been developed with the assistance of all major stakeholders, was published for consultation on 31 May 2005 and a copy has been sent to the Committee. Subject to the responses to that exercise, the Commission is on course to publish the final code in early 2006. This is consistent with our commitment to give industry around 12 months to prepare for the introduction of the new duties.

7. The Government wishes to wait until later this year to see the results of research into compliance with voluntary arrangements designed to secure better access to air and sea transport for disabled people. It will then decide whether regulations are necessary. We understand this reasoning, but it is no excuse for inaction in the meantime. The Department, the DRC and other interested parties must continue to raise cases of unsatisfactory provision with air and sea operators. It is presumably in the operators' interest that these arrangements remain voluntary. The Government should therefore publicise now the test it will apply when the research results are available. We suggest that test should be as follows: to escape statutory duties, airline and sea transport companies must prove that they provide services which meet disabled people's needs in the same way as operators in sectors where statutory duties do exist. ( Paragraph 25 )

We are committed to regulating for the aviation and shipping sectors if compliance with the voluntary codes of practice currently in place for both industries are shown to be ineffective. Around the end of this year we expect to have received the reports from two research projects which were set up to monitor compliance. The Committee has requested that we publicise now the test we will apply in order to assess whether the necessary improvements have been made. Industry will be assessed against the recommendations laid down in the relevant code of practice. Whilst we cannot prejudge the outcome of the research, which we will publish, we have ensured that the new provisions in the Disability Discrimination Act 2005 are wide enough to enable the Department to apply the legislation to those sectors.

In the meantime, we will continue to work closely with industry to improve access for disabled people. One example, mentioned in the Committee's report (paragraph 24) involves a non-UK ferry operator which did not allow guide dogs to accompany their owners on trips. Following discussions with the Department for Transport, and having completed trials with guide dog users, that operator has since changed its policy and now allows up to two guide dogs to travel with their users in the passenger areas of their vessels.

We need to acknowledge that aviation and shipping are also international modes of transport and we are working at that level to ensure that the needs of disabled people are met. Indeed, the European Commission has published a draft proposal for a regulation to protect the rights of disabled passengers when travelling by air. The proposals encompass booking arrangements offered by travel agents through to assistance offered at airports. We are currently consulting on the Commission's proposals.

8. The Government must ensure that the work of the Disability Rights Commission on transport matters is assumed fully by the Commission for Equality and Human Rights in a seamless and effective way. The timing of the changeover is awkward because it clashes with the planned extension of the Part III DDA duties to transport service providers. However, we recognise that there are few perfect moments for any organisational reform. The Government is the promoter of the change and ultimately determines the timing. The Government must therefore ensure that the resources and governance arrangements of the new single Commission do not undermine the DRC's efforts to secure smooth and meaningful entry into force of the new duties on transport service providers. ( Paragraph 27 )

The Equality Bill, which would establish the Commission for Equality and Human Rights (CEHR), will make provision to ensure continuity with the Disability Rights Commission's work programme and to ensure that disabled people steer the CEHR's disability remit. This includes a requirement for there to be a disabled commissioner and a disability committee with executive powers at least half of whose members are themselves disabled people or people who have had a disability. The committee will be responsible for discharging the Commission's remit with regard to the relevant transport provisions of the Disability Discrimination Act 1995. The Bill also requires that the Commission allocates to the disability committee a share of its resources sufficient to enable it to carry out its delegated functions effectively.

9. We do not believe transport operators rely systematically on spurious health and safety considerations to avoid improving disabled people's access to transport. There can occasionally be a tension between health and safety, cost and accessibility. However, sometimes small increases in risk might bring significant improvements to accessibility. When tensions do arise between health and safety, cost and accessibility, transport operators must be able to seek authoritative advice to reduce the likelihood of legal action. The provision of advice must not be jeopardized when rail safety responsibilities move from the HSE to the Office of Rail Regulation, or when the Equality and Human Rights Commission replaces the Disability Rights Commission. ( Paragraph 36 )

It is not acceptable for transport operators to use health and safety considerations inappropriately as a barrier to improving accessibility to their services. We agree with the Committee's assessment that such improvements are not generally being obstructed by spurious health and safety concerns but that there can sometimes be tensions between these considerations.

The Health and Safety Executive (HSE) already aims to assist duty holders to carry out sensible assessments of the risk to health and safety arising from work activities and take appropriate measures to protect both staff and passengers. If improvements to accessibility change health and safety risk profiles for either group, then relevant and reasonable new precautions may need to be considered.

The onus is on the service provider to meet the requirements of both the Disability Discrimination Act 1995 and health and safety legislation as appropriate. Where transport providers are uncertain how to comply with both, they may need to seek independent advice.

The HSE is best-placed to provide advice on assessing risks to health and safety and the appropriate protective measures needed as a result and seeks to be sensitive to the needs of disabled people in doing so. Similarly, when authorities are giving advice on appropriate disability access measures, there is a need for account to be taken of health and safety risks. The Executive is working to ensure the smooth transfer of rail safety responsibilities to the Office of Rail Regulation.

Arrangements to ensure continuity between the Disability Rights Commission and the Commission for Equality and Human Rights are described at 8 above.

10. Improvements to accessibility must be properly co-ordinated, even within one mode of transport. Accessible trains which serve inaccessible stations are of little benefit, as are wheelchair-accessible buses that cannot pull into the kerb to extend their ramps because of parked cars. The Government must use the duties it will re-acquire as a result of the Railways Bill, and the new franchise agreements, to ensure that accessibility is improved in a co-ordinated way on the railway. We recognise the expenditure constraints, however, these heighten the need for wise spending decisions and demonstrable improvements. If infrastructure and rolling-stock improvements are co-ordinated in a common-sense way, disabled travellers will experience significant benefits step-by-step, not only once all the improvements are complete. ( Paragraph 40 )

We agree with the Committee that improvements in accessibility must be properly co-ordinated if disabled people are to receive maximum benefit. Whilst we will continue to encourage transport operators to co-ordinate improvements, we must recognise that there are instances where this is not always possible, or indeed practical.

Last year, we introduced "accessibility planning" into the Local Transport Planning process to encourage local authorities and other agencies to assess more systematically whether people can access services in their areas. This process covers all forms of transport from buses and coaches to cycling and walking networks. We have also made provision for disabled people a condition against which the resulting Local Transport Plans are assessed.

In addition, the new duty to promote equality which will be introduced as a result of the Disability Discrimination Act 2005, is likely to have an effect in this area. Once enacted, local authorities will be required to consider the needs of disabled people when carrying out all their functions including, for example, tendering bus services or using their existing powers to address the obstruction of bus stops by parked vehicles.

Specifically on rail, the Disability Discrimination Act 2005 ensures that all rail vehicles will be subject to rail vehicle accessibility regulations by a date no later than 1 January 2020. The setting of an end date will enable disabled people to be clear about when all trains will be accessible. They will also benefit from the improvements made possible through the application of rail vehicle accessibility regulations to existing rail vehicles when they are being refurbished ahead of that date. The precise timing of improvements to rail vehicles will therefore be determined by the interaction of the end date with the dates by which different rail vehicles are due for refurbishment or replacement.

In March, the Strategic Rail Authority published for consultation its draft Accessibility Strategy, "Railways for All", with the objective of making the railway more accessible to disabled people. The draft Strategy recognises the need for railways to form an integral part of an integrated planning process across all transport modes. Since the measures in the draft Strategy are wider than step-free access, a station improvement measure can be valuable even if it does not link with an accessible train. Measures that remove different types of barrier will make more journeys possible for different people depending on their disability.

The draft Strategy sets out criteria for selecting which stations should first benefit from accessibility improvements. The main criteria proposed are passenger usage and the need to ensure a good geographic spread. Other factors considered include whether the station is served by accessible rolling stock. The Strategy will be backed by the £370 million Access for All fund which is a ring-fenced resource for improving access to railway infrastructure.

11. Disabled People's Protection Policies (DPPPs) are important because they offer clear statements of guaranteed access. They must be based on consistent interpretation of the DDA across the rail network. They must not preclude the application of common sense. After all, disability discrimination legislation exists to improve access, not impair it. A disabled person who is accommodated on a train one day should not be refused access to the same rolling stock the next. When the Department for Transport assumes the strategic functions of the SRA as a result of the Railways Bill, it must ensure that train operating companies' DPPPs do not undermine sensible, informal solutions on those parts of the rail network where full access cannot yet be guaranteed. ( Paragraph 46 )

This comment relates in the main to the carriage of scooters on trains. The Association of Train Operating Companies (ATOC) is working with all the train operating companies (TOCs) to find a way forward to improve what can be achieved for people travelling with scooters. The initiative is supported by the Strategic Rail Authority (SRA). Scooters vary in weight and size and it can be very difficult for a TOC's staff to assess whether a particular scooter is suitable for carriage within the passenger environment. The DPPP asks for each individual TOC's policy on scooters on trains but it does not force them down any particular policy route. The decision whether to carry a person with a scooter is therefore down to individual TOCs and this will be enforced by their own staff. It is currently for the SRA and then the Department for Transport (DfT) how it chooses to enforce the DPPPs. If a TOC chooses to change its policy it should inform the SRA or the DfT and change its DPPP. It is our belief that it is not for the SRA or the DfT to mandate a TOC to carry scooters if the TOC then, due to its own internal risk and safety policy, refuses to carry them. This would undermine the whole DPPP if it had clearly unenforceable elements in it.

Notwithstanding the current position we do, however, recognise that with an ageing population the growth in the scooter market is likely to continue. We propose this year to commission research to look in detail at the issues surrounding the carriage of scooters by public transport generally, including rail. The findings of that research could be used by industry to establish their future policy approach.

12. Walking must not become the poor relation of public and private transport as disabled people's access to transport improves. We welcome the detailed official guidance to help planners incorporate the needs of disabled people into street design. However, the Department for Transport should consider whether tactile paving and colour coding provide a sufficient barrier between visually-impaired people and cyclists on shared cycle track/footways. Visually-impaired people-and indeed all users of shared paths-need to know not only where the dividing line is between pedestrians and cyclists, but also that they are on the correct side of it. ( Paragraph 50 )

We recognise that almost all journeys begin and end on foot and that walking is therefore a vital component of an integrated transport system. As well as the publication of the guidance mentioned by the Committee and the provisions to strengthen the local transport planning process outlined in 10 above, the Department for Transport also published "Walking and Cycling: An Action Plan" in June 2004 and has subsequently published "Encouraging Walking and Cycling: Success Stories ¹ ", outlining good practice case studies on successful initiatives to encourage more walking and improve conditions for walking. All publications have been widely disseminated to local authorities and other stakeholders.

Specifically on the application of tactile paving, its purpose is to guide visually-impaired people where they enter a shared route and provide reassurance to them at intervals along its length. Advice on appropriate layouts is contained in the Department's "Guidance on the Use of Tactile Paving Surfaces" document.

A number of respondents to a recent consultation on the draft Local Transport Note "Adjacent and Shared Use Facilities for Pedestrians and Cyclists", raised the limitations of segregating by contrast through the use of a white line. We will be taking these views into account when producing the final version for publication.

13. Disability awareness training for staff in the transport sector is desirable even now. It will be essential when transport operators are brought within the scope of the Disability Discrimination Act. The costs of this training to the transport industry will remain significant. Taxpayers, shareholders and passengers deserve to see a return for their investment. The training must be accredited and monitored to ensure it is of a consistent quality. However, simply going through the motions of training is not enough: the resulting service must be noticeably better for disabled passengers. The Government, local transport authorities, DPTAC and the DRC should consider whether "mystery shoppers" could be deployed systematically as part of ongoing service monitoring. ( Paragraph 58 )

14. Staff attitudes have a profound effect on people with learning disabilities. Staff training must therefore be improved to help meet their needs. Providers of disability awareness training should seek greater input from organisations which represent people with hidden disabilities, such as learning disabilities. This could include involving people with learning disabilities in the training so that they can meet members of staff. Customer care training should reinforce the business benefits of sensitivity and understanding. ( Paragraph 59 )

The Disability Discrimination Act 1995 seeks to ensure a positive outcome for disabled people but how this will be achieved will depend on the circumstances of the individual case. Service providers will only be required to do what is reasonable and disability awareness training is only one of a wide range of reasonable adjustments that might be made. While it may be highly desirable for the staff of transport providers to undergo such training, making it a mandatory requirement could divert limited resources away from making other adjustments that would otherwise be reasonable and may also benefit disabled people.

The Department for Transport (DfT) and the Disabled Persons Transport Advisory Committee (DPTAC) already contribute training resources in the form of leaflets and other guidance materials which are disseminated widely throughout the industry. In particular, DfT has recently supported GoSkills (the sector skills council for passenger transport) to produce a training video for bus and coach drivers outlining the difficulties disabled people can face in accessing bus services and how these can be overcome. That video, "We Can Do That", has been widely praised including by David Congdon of Mencap in his evidence to the Committee. "We Can Do That" is part of a wider NVQ programme and it is envisaged that the recent establishment of GoSkills, as a national body with overall responsibility for training, will act as a driver for wider formal accreditation and result in more professional training throughout the industry.

As well as providing material and expertise to assist the industry in understanding the needs of disabled people, DfT and DPTAC also follow the industry's response and, in future, the Disability Rights Commission will be able to investigate problems. Subject to resources, it is likely that "mystery shoppers" may be employed to monitor industry performance.

We will, of course, continue to encourage transport providers to offer disability awareness training and stress the importance of ensuring that it is received by both front line and management staff and regularly updated throughout the period of employment.

15. Court judgements on the "reasonableness" of accessibility improvements tend to provide certainty only in a specific case. We urge the Government to reconsider whether prescriptive regulations should be made to define more clearly what adjustments are reasonable in various parts of the transport sector. Without such leadership, we fear that Parliament and Government will lose control of both the extent and cost of making public transport accessible to disabled people. In our view, the determination of exactly what is "reasonable" is not a mere detail which could benefit from occasional clarification; it involves fundamental policy decisions which establish just how accessible transport is to disabled people. ( Paragraph 66 )

16. The Government has failed to convince us that it is better to leave the determination of what constitutes a "reasonable" improvement to the DRC code of practice and, ultimately, the courts. We have no doubt that the DRC code of practice will be useful, but cost control, particularly in the rail industry, is one reason for our belief that it would be better to prescribe reasonable adjustments in regulations. The example of the book-ahead requirement demonstrates the wide variation in costs between different policy options. The rail industry receives significant subsidy, and franchise levels have an effect on the public purse. While legal challenges to regulations can never be ruled out, the Government could keep a tighter grip on the costs by determining the requirements in more detail in the first place. ( Paragraph 73 )

We have noted the Committee's position on this issue but believe that the existing provisions in relation to "reasonableness" which are enshrined in Part 3 of the Disability Discrimination Act 1995 work well for other service providers and see no reason to make an exception in the case of transport.

The Disability Discrimination Act 1995 is based upon requiring service providers to make adjustments that are reasonable in a particular case. In considering these issues we would point out that the provisions, in line with the Disability Rights Task Force recommendation, would not be used (except in the case of vehicle hire services) to affect the physical fabric of the vehicles themselves. It is important to note that, with the exception of vehicle hire services, these are not physical adjustments but rather changes to policies, procedures and practices.

The Committee refers to the recent Disability Rights Commission-supported case of Roads Vs Central Trains in which the Judge indicated that his adjudication would only be applicable to the very specific circumstances of the case. This is not a common approach and other recent cases, such as that of Ross Vs Ryanair, have not been so linked. Although it is envisaged that most instances of discrimination will be resolved before they get to the courts, such high profile cases encourage transport providers to look more closely at how they provide their services.

The cases highlighted above were brought against transport service providers under the existing provisions of Part 3 of the Disability Discrimination Act 1995 and resulted in a positive outcome for disabled people in both instances. The Disability Rights Commission's code of practice on Part 3 was referred to during both trials and we believe the Commission's new code of practice specifically for transport service providers, which has been developed with the assistance of all major stakeholders, is the most appropriate medium to provide guidance on the factors to be considered in deciding what is reasonable.

Producing prescriptive regulations specifying what is "reasonable" for service operators generally may be entirely inappropriate when applied to other sectors or even within the same mode of transport. To give one example using the Committee's analogy of rail services, what would be "reasonable" for a national train operating company might easily put a heritage rail operator out of business. The concept of "reasonableness" is therefore used to apply the provisions of the Act in a proportionate manner depending on the circumstances of the case, including the ability of the service provider to pay for any necessary alterations.

¹ Encouraging Walking and Cycling: Success Stories, Department for Transport, January 2005.